The next business on the Order Paper is the Courts of Justice Bill, 1923, Second Stage, and the motion is: "That this Bill be now read a second time."
THE COURTS OF JUSTICE BILL, 1923.—SECOND STAGE.
AN CATHAOIRLEACH
This undoubtedly, in my opinion, is the most important measure yet submitted to the Senate of the Irish Free State. It requires to be considered very carefully. You, sir, have held the most important of the honourable positions attached to the Irish Judiciary, and, personally, and I think probably, every other member of the Senate will agree with me when I say we should like to have your views upon this Bill as it stands, and consequently I would move that some other Senator take your place and that you give us the benefit of your opinion upon the Bill.
The Bill before the House is of such importance not only to my own profession but to the public generally that I feel the Second Reading ought not to pass without some general criticism of its principal provisions. The object of this Bill is to abolish all the existing Courts in this country except the Coroners' Court.
AN CATHAOIRLEACH
I do not know whether Senator Brown heard exactly what Senator Sir Thomas Esmonde suggested to me; that the House would like to hear a brief introductory statement from me upon the subject of the Bill.——
No, I did not hear that, and I apologise for intervening at this stage.
AN CATHAOIRLEACH
I would be quite prepared to leave it in your hands, Senator Brown, and indeed I do not think it could be in better.
I beg to second the motion made by Senator Sir T. Esmonde.
I must apologise——
AN CATHAOIRLEACH
No, I know quite well you did not understand at the moment. Indeed I am very reluctant to interfere because I always felt I could rely upon you in my absence.
AN CATHAOIRLEACH then left the chair, which was taken by AN LEAS-CHATHAOIRLEACH.
I have not been unwilling to respond to the suggestion made by Senator Sir T. Esmonde and others because I think, without being at all personally vain in the matter, I am entitled to claim a considerable experience in regard to this question of the form and nature of the Judiciary best calculated to suit the new conditions under which we live. I was, as Senator Sir T. Esmonde has said, not merely a member of the Irish Bar for over forty years but it was also my privilege to hold judicial office. But my real claim to speak on make any suggestions to you with reference to this Bill of vital importance is the fact that I happened to be Chairman of the Committee appointed by the President for the purpose of investigating and reporting upon this particular matter.
I had many curious experiences in a long and varied career but the happiest —I say without hesitation—was my experience as Chairman of this Judiciary Committee. The body consisted of twelve, and all of these twelve, with the exception of one, had been past members of one or other branch of the legal profession, and I think a remarkable tribute to the disinterestedness and zealous way in which they each acted and applied themselves to their task is to be found in this fact, that although the Committee was composed substantially of members of the legal profession, the only attack that came from any quarter in reference to any of their recommendations was from members of the legal profession. I think therefore the public realise that the members of the Committee had regard with a single mind to the public interest and not to the special welfare of the particular interests they might be supposed to represent. Broadly speaking their recommendations have been incorporated in the Bill and to that extent the best tribute that could be paid has been paid by the Government and the Dáil to their efforts.
Speaking broadly their recommendations consist in the erection or setting up of a Supreme Court of Appeal and a High Court on top of the Judicial System with practically unlimited powers. Of course your Supreme Court of Appeal and your High Court must necessarily have almost unlimited jurisdiction, as the final and ultimate court of the land. Below the High Courts we propose to form Circuit Courts very much on the lines of the existing County Courts but with substantially increased jurisdiction, and here there is a matter that will be well deserving the consideration of the Seanad, more particularly in so far as the members of it claim, and very rightly claim, to represent the business and the commercial interests of the country. Under the old system the jurisdiction of the County Court was limited, practically speaking, to £50. There were certain conditions which I need not trouble the Seanad with, that in the case of cases sent down from the High Court that jurisdiction was enlarged, but the original jurisdiction of the County Courts was subject to the limit that claims should not exceed £50 coming before them.
The Committee were greatly interested in arriving at a recommendation as to what the future limits of the jurisdiction of these new Circuit Courts or County Courts should be. We were all impressed with the belief that £50 was too low. On the other hand, the suggestion that was made from some quarters of £300 was looked upon by some as too high, but finally, after a good deal of discussion, we came in this matter, as in all others, I am very glad to say, to the unanimous conclusion to report in favour of a limit of £300. That is to say, that any claimant in a district who wants to come before a Circuit Judge will be entitled to originate his proceedings there so long as his claim does not exceed £300. I know that has caused some doubt and misgiving in certain commercial circles, inasmuch as the merchants, wholesale and retail, of all kinds and descriptions will be liable to be brought to these Circuit Courts by the plaintiff, who would be resident in the district, and would, therefore, be entitled to bring them down there and make them defendants in the case to be tried in the local venue, and that they might be exposed to some unfair prejudice or handicap by reason of local feeling.
On the other hand, we came to the conclusion that so long as a really substantial appeal was provided from the decisions of the Circuit Court no injustice in that respect was likely to arise. The old appeal in the case of County Court Judges was from their decisions to Judges of Assize, and the experience of the Bar—certainly it was my experience, and I found that my views had the entire assent of every one of my colleagues in that Committee—was that that appeal had been very unsatisfactory indeed. In effect it came to this, that litigants knowing there was almost certain to be an appeal to the Judge of Assize looked upon the hearing by the County Court Judge to be a sort of preliminary canter. They merely tried the wind of their clients to see how they could stand the fences, and the result was they knew when they came before the Judge of Assize where the weak point was, and in nine cases out of ten the case presented before the Judge of Assize bore no resemblance to the case the County Court Judge had to deal with. The weak points were provided for when the matter was re-heard before the Judge of Assize. There was another objection. There is a good deal of human nature and temperament about judges, although they do not get credit for it. They are all human and have their idiosyncrasies. It was notorious throughout my time that certain judges were temperamentally inclined to decide for the plaintiff, and others were temperamentally inclined to decide for the defendant, and, consequently, when it was ascertained who the particular judge was who was coming down on the Circuit a number of the appeals would disappear, whereas if he was the sort of judge they wanted the appeals remained on the list.
Another drawback to the system was that the judges had to fix beforehand the amount of time they would spend in each Circuit town. Consequently, if they found, owing to the congestion of appeals, that they were likely to be detained beyond the time fixed for reaching the next town by the date they had assigned, they used to give these appeals a very hasty and perfunctory hearing, and the litigants were greatly dissatisfied. We think we have provided a remedy for all that, and the Dáil in its wisdom has agreed with us and accepted our proposal, and that is that all these proceedings before the Circuit Court Judge should be reported by a Government stenographer, that he should take a full note of the proceedings from start to finish, and that at the conclusion he should transcribe these notes, which would be available for the litigants for the purpose of appeal. The advantage of that is that the case is there stereotyped once and for all. The litigant has put his best foot forward, his case is in black and white, and he cannot mend his hand. He cannot go back on the evidence already given, and the appeal is to be determined by the notes, so that the necessity for producing his witnesses and having the whole case re-heard is dispensed with.
That is the appeal provided, and I think that appeal sufficiently safeguards merchants and others from the possible risk they anticipate of finding themselves in a strange local venue, where prejudice might be supposed to be in favour of the plaintiff. On the other hand, it is well worth consideration, whether in making the new departure the Committee and the Dáil may not perhaps have gone a little too far in extending the limit from £50 to £300. That is a matter which is capable of discussion. and, I am sure, will receive full discussion in Committee. Then we came to the Magistrates' Courts, what in old days were called the Courts of Petty Sessions, and here, again, we were all agreed that the services of unpaid local Magistrates presiding as Justices were undesirable and did not suit the local conditions and circumstances of our country, and we were of opinion, and so recommended, that justice should be administered in each county by one or more well-paid Judges, appointed by the Government, who would, under the description of District Justices, or some other name, take the place of the unpaid Justices and administer justice accordingly. We recommended a substantial increase in the jurisdiction of the old Justices and Resident Magistrates, and these increases have been accepted by the Government and approved of by the Dáil, and are incorporated in the Bill.
The recommendation of the Committee was in the hope and belief that they would thereby make the position of District Justice one of great dignity so that there might be one District Justice in one county, and that he should have such assistant District Justices as the Government found necessary. However, they have not adopted that plan. Each District Justice is on the same level, and whatever number may be required in any county, they are to be each of the same co-ordinate jurisdiction, each to be called a District Justice, and to be paid at the same rate. Our proposal was to have the one District Justice in one county, and to give him an assistant paid at the lower rate, who would ultimately be entitled to be promoted to a District Justice. That was our plan. The Government have adopted the other, and probably they were right. This is one of three great steps, if I may say so, that we recommended in the judicial system. We were also asked— this is a matter I hope on which we shall hear something from the President, whom I am so glad to see amongst us again—to report as to the staff that would be necessary in the future for those Courts, and we went into that very carefully, not very minutely, because, of course, we could not grapple with the subject at that time in minute detail, but we made certain recommendations which, I think, are of very great value. For some reason the Government have not dealt at all with the staff in their Bill. I regret that. I think it is a mistake, and I wish to give my reasons for the statement.
I am told the Government contemplate, in a separate Bill, reorganising the Judiciary staff, not only in the Castle and Higher Courts, but also throughout the country. My belief is this, that it is much more easy to start your new Judiciary with a reduced staff, because undoubtedly the staff is capable of very great reduction. Under the old system there was tremendous overlapping. The Courts were divided into divisions. You had a Chancery Division, a Bankruptcy Division, a Probate Division, and each division had its own little water-tight set of offices, and men in those offices were employed doing work in each division, which was being done over again for the other divisions by a separate and independent staff. Now we have recommended, and the Government have adopted, the abolition of all those divisions. All this work can be done in one central office, and, in my opinion, that constitutes a very great reduction and saving of money for the State. We thought all that would be done and that all those changes would be introduced contemporancously with the setting up of the new Judiciary.
I think there are tremendous advantages in that suggestion in this respect. If you start your new Judiciary with a redundant staff you will have infinite trouble in reducing it, because the moment any judge recommends the removal of any particular officer, he is at once inundated with petitions on behalf of that particular gentleman or on behalf of other gentlemen, or on behalf of the staff generally, whereas if you start your new Judiciary with a reduced staff, sufficient for your new purposes, then you are not faced with the invidious task of reduction, nor are you faced with the still more invidious task of filling vacancies or making promotions. We will hear later on from the President whether it is the intention of the Government to bring in this Bill, and whether it is proposed that the present Judiciary Bill shall not come into operation until the Bill reorganising the staff is passed. That is their intention, and I think it would be a very desirable thing to do.
If that is their intention I think it is a pity the last twelve months has been allowed to pass without the slightest attempt having been made to formulate any scheme of reduction or reorganisation for this overlapping Judiciary staff in the country. Having said so much, may I just say that I hope the country will realise—I say it with all respect to the members of the Dáil, that I do not think they yet realise— the tremendous constitutional change that has been made as a result of the Treaty and the Constitution. It is one that tends to the permanent liberty and security of the subject. It is a protection that no member of the Dáil or no member of the Seanad should allow to be lightly tampered with or interfered with, because it contains within itself the greatest charter of liberty that any country or any nation could wish or hope to have. I refer to the fact that the Constitution has adopted the great theory, call it what you like, of the United States and Canada, and of most modern Governments, that is to say, they have reduced the Constitution of the Irish Free State into writing, and they have, in addition to that, created by statute, and by the Constitution, the principle that our judges in the future are to be "independent in the exercise of their functions."
Ex-President Woodrow Wilson, in certain interesting lectures he delivered a few years ago on the Constitution of the United States, points out that by reason of the fact that the Supreme Court of the United States is independent, that by reason of the fact that the Parliament and Congress of the United States cannot by legislation go one inch outside the Constitution, the judges have an equal power and footing with the Government itself, and he proceeds to state that the permanent guarantee and the basis of all personal freedom and of liberty in the United States is to be found in the courage and the conscience of the Courts and their perfect freedom from all Government control. Now, in theory that is what the Constitution of the Free State confers on this country. It is a tremendous treasure, a tremendous privilege, and they would be well advised both in the Dáil and in this House to guard most carefully against the slightest attempt to infringe upon it. I mention that and refer to it with emphasis—I speak quite plainly, I have never been hostile to the present Government, nor have I opposed it in any way, and I have never been, since I have had the honour bestowed on me to preside over this great assembly, in opposition to it.
Rather it has always been my object to make matters smooth for the Government, and I have always tried to facilitate them in the passage of Bills through this House, and I have given them my loyal support as far as I could. At the same time I confess that I have noticed in the legislation that has come before us an attempt, almost inevitable on the part of any Government with a written Constitution, to nibble and, by derogating to their own Executive and their own Ministers certain powers, to curtail and to subtract from the rights of the people under the Constitution. This Bill affords an illustration of that. We will have to discuss two other illustrations of it next week. This particular Bill contains an illustration of it which I confess I am wholly at a loss to understand or account for. An Act of Parliament, the Constitution says in plain and unambiguous language, that "the judges are to be independent in the exercise of their functions," and members may now kindly turn to Section 22 of the Bill.
It says: "The jurisdiction vested in and transferred to the High Courts, the Supreme Court, and the Chief Justice, respectively, shall be exercised so far as regards pleading, practice and procedure, etc., in the manner provided by the Rules of Court to be made under this Act." Now, you see the importance that is thereby attached to the Rules of Court. They are to be the machinery under which these independent judges are to exercise their independent functions. A few Sections later on we actually find this Government of the Irish Free State introducing a provision, which passed the Dáil after a very acute division and a very acute debate—the Government being opposed by the Independent Party and the Labour Party—by which these Rules of Court, through which independent judges exercise their independent functions, are to be made by a member of the Government. That is to say, they are to be made by the Minister for Home Affairs in conjunction with the Minister for Finance, and with the concurrence of certain members of the Court.
I will come to the particular paragraph in a moment. I want to say this, that it is the first time in the history of the British Constitution that the Judiciary have ever been exposed to such humiliation. For the first time it is now being imposed upon a Judiciary which by the Constitution is declared to be independent, differing thereby from the Judiciary of the past, and differing from the English Judiciary, which has no such Constitutional declaration of independence as this. The independence of the English Bench is purely a matter of tradition, and that arises from the fact that ever since the reign of William III. judges can only be removed for misconduct. They hold office for life, that is to say, as long as they are of good behaviour, and can only be removed for misconduct. They have never had any Parliamentary or any legal declaration of their independence. The Irish bench gets it, just as the bench in the United States and in Canada gets it, for the first time under the new Constitution. Yet, at the very outset of the application of the new Constitution, the Irish bench are to be subjected to the humiliation of having dictated to them what their procedure is to be, what their methods of pleading are to be, how they are to address one another, and, if you please, what costume they are to wear.
In the name of goodness, I ask what was in the mind of the Government when they sought to impose this badge of humiliation, at the very outset of the creation of this new Judiciary? Why, it will be told all over the country of these judges—call them independent—that the first thing they will have to do will be to wear Government livery, the Government having the power to dictate what their official robes will be! And not only that, but going beyond everything heard of or attempted, the Government actually claim to dictate the costume the Bar shall wear. What right of control have they over the Bar in a matter of that kind? The Bar are not Government servants. They are not in any sense officials of the Government. They are as free and independent to wear any costume they like as any member of the public. Will it not be an extraordinary state of affairs if we find the Government in a short time in collision with the Bar of Ireland on the question of whether they are to wear trousers or kilts? There it is in black and white.
I now turn to Section 35; but before coming to it let us see how did matters stand under what was called the Irish Judicature Act. Under that Act judges made Rules of Court dealing with the procedure of these things in the shape of recommendations, which emanated from them and went to the Lord Lieutenant as representative of the Crown. The Lord Lieutenant in every case, invariably, at once signed them as a pure formality. The recommendations were drafted and drawn up by the judges themselves. But the Government have even overthrown this. They no longer say that the recommendations are to come from the judges to the Minister, instead of the Crown, but that the Minister is to formulate them, and then see whether the judges will concur in them. I think that is a great mistake, and not merely from the point of view of the independence of the judges, as regards which I think this Section is a distinct violation of the Constitution. I also think it is a very grave mistake to run the risk of having the Government implicated in disputes with the judges over these matters.
Surely these domestic matters like the rules of pleading and procedure ought to be left to those who are the heads of these tribunals, to run their own houses, just in the same way as the heads of Universities or the heads of any other great profession or body in this country. I wonder what the Seanad would think if an attempt was made to introduce a provision that the Standing Orders of the Seanad were to be subject to the approval and ratification of the Minister for Home Affairs. That, of course, would be resented by the Seanad. Senators would not tolerate nor listen to it for one moment.
Here is a case in which they seek to do it to the highest tribunal in the land, which by their own Constitution is declared to be independent, in the very thing in which the Government are seeking to control. That is, in the exercise of their functions judges are to be made dependent for their regulations and rules upon the initiation of the Minister for Home Affairs. I do not stop to criticise the Section itself. As it stands it is absolutely unworkable and clumsy, because you cannot make out from the Section whether, when the Minister has drafted his rules, there is to be a meeting called of the judges to see whether they concur with him or not, or whether each judge is entitled to record his vote without attending the meeting. If it is intended that the concurrence of the judges is to be obtained, then there should be a provision in the Section fixing a quorum, and also a provision stating what is to happen if there is a tie. As it stands at present the Minister for Home Affairs may formulate a number of rules, and the judges and other gentlemen named in Section 35 may meet, and there might be a tie, as to their views about this.
What is to happen? It does not say. What is the quorum? Nothing said. Therefore, it is inevitable that there will be friction between Ministers of the Crown and the judges over these matters, a most deplorable consequence, in my opinion, but an almost inevitable consequence of this attempt to superimpose upon the independence conferred by the Constitution the overriding power of a member of the Executive. Precisely the same clause is indicated later on in the case of the Circuit Judges. And, when you come to the District Justices, they are made even still more dependent; their position is still more humiliating, because they are not to have a concurrent voice in the framing of these rules at all. These rules are to be made for them by the Government, with the assistance —that is the term used—not the concurrence, but with the assistance of a certain number of District Justices, so that you see their position is one of still greater humiliation than that of the Circuit Judges and the Judges of the High Court. I have asked myself over and over again what is really at the bottom of all this.
What is the Government attitude in this? They surely do not wish to precipitate friction between themselves and their own judges at the very outset of their career. They certainly will precipitate friction with the Bar if they proceed to tamper with the time-honoured costume of that profession. That profession has met, and by a unanimous vote declared their desire to retain that time-honoured costume with a tradition of many centuries, and one to which great Irishmen have given the greatest possible distinction. Dan O'Connell, Curran, O'Hagan, Palles, and men of that sort found no indignity or shame in wearing a wig and gown. They gave honour to it, and it is because it has been associated with great men like them it has become the heritage and treasure of the profession, and it should be treasured by the people of Ireland. On what possible plea or right can the Government claim to interfere with the Bar in matters of this sort? The Bar, as I have said, derive no advantage from the Government or from the public purse at all, compared with what is derived by the students in the Universities.
Do you think that the Universities of to-day would tolerate the interference of the Government if they were to lay down a law that they were to abandon their present academic costume for some grotesque costume to suit the views of the particular Minister for Home Affairs at the moment? Because, remember, this is a thing that can be altered, and re-altered, by each successive Minister for Home Affairs. The present Minister for Home Affairs might prefer a kilt. His successor might be a sporting man, and he might prefer a jockey's costume. The next successor might have clerical tendencies, and he might prefer to see the judges robed in clerical costume. Where is this thing to end? It is really childish. If it was not in this Bill it would seem to be a childish matter to be discussing, but there it is in the Bill, and as long as it is there there will be dissatisfaction and unrest. As I said, all this about the Minister for Finance and the Minister for Home Affairs is all pure camouflage in order to cover up what is the real purpose and object of this elaborate scheme.
I think the real purpose and object will be found in paragraph 6 of Clause 35, because the Minister for Home Affairs is to provide for the mode of address to be adopted to the judges and the robes and official dress to be worn by the Bench and Bar. There is the whole part of Hamlet, in my opinion, and the only specific object or purpose for which this thing could be inserted. The sooner that clause is out of the Bill, and a corresponding clause dealing with other Courts, the better, in my opinion, for the credit of the Government. It will make for the removal of any possibility of their coming in conflict, in fact the certainty of their coming at a very early stage in conflict, with the Bar and the Bench, and, above all, for preserving, in this respect, the sanctity of our Constitution, which has given us, as I have said, a prize and privilege invaluable beyond conception if preserved in its integrity, but one that can be very easily weakened and dissipated by constant encroachment. I am very proud and very jealous of the traditions and honour of the Irish Bench and Bar. I believe that they have fulfilled and played an honourable part for many centuries in the history of our people, though I know it sometimes has been said that members of the Bench in this country have made themselves the tools or the creatures of the Government of the day.
Although such a charge as that is almost inevitable in any country where promotion to the Bench is made by the Government of the day or by the Crown on the recommendation of the Government of the day, I will say this, and I challenge contradiction upon it, that I never knew throughout my whole experience at the Bar greater jealousy of Government interference on the part of the judge than was incessantly exercised by the Irish Courts. Whenever I went into an Irish Court to support a Government Department I was almost certain that I would retire with defeat and annoyance, and I was seldom disappointed. On the other hand, if I was briefed to go in to attack it I seemed to be at once in a harmonious atmosphere, and I generally came out flushed with success.
I heard a story apropos of this with which I may perhaps conclude. You know in certain parts of Ireland a great defence in criminal cases is an alibi. For some years they had been discounted by various judges who were in the habit of visiting County Clare. It became known that the late Lord Chief Justice Cherry, who just then had been appointed to the Irish Bench, was going down for the first time as Judge for the County Clare. There was a very important case in which a prominent farmer was to be tried for some agrarian offence, in the nature of moonlighting, or something of that kind. His counsel were in huge delight, because at last they said we have got a judge who will understand and sympathise with an alibi. So when the case was called they proceeded before Lord Chief Justice Cherry to develop the alibi. He said nothing till he came to address the jury. Then he said: "Gentlemen of the jury, you are faced here with a notorious and peculiar defence—an alibi. I tell you from my long experience that in 99 cases out of 100 that defence is a tissue of falsehoods from beginning to end. I do not think this case is any exception, and I strongly recommend you totally to disregard it." They did so, and convicted the man. Well, the feelings of his counsel were not fit for publication. I only mention that to show that whatever may have been the political views of members of the Bench, when they were in the ranks of the profession, that my experience of them, and I say this of them without exception, is that they showed themselves when on the Bench anxious and eager champions of individual and personal liberty and freedom. I should be very sorry that that great tradition should be in any way tarnished now when we were setting out upon our new career of liberty and freedom under conditions which are becoming more auspicious every day. I should greatly deprecate, in the interests of that great profession which I love and honour, that we should begin by imposing upon them anything which they themselves would look upon as a humiliation, and which would be, in my opinion, not only a breach of the spirit of the Constitution, but an actual violation of its letter.
AN CATHAOIRLEACH
at this stage resumed the Chair.
I am very grateful that you, A Chathaoirligh, should have taken off my shoulders the task, which otherwise would be on me, of explaining the general provisions of this most important Bill. I think, however, that it would be of use to the Seanad if I were to call attention to certain of the provisions of the Bill, which I think the members of this Seanad ought to consider very carefully in the interval between this Second Reading of the Bill and the time when the Bill will come on in Committee for the purpose of consideration there. You, Sir, have referred to one of those provisions, or rather three of them, dealing with the Rule-Making authority of the three sets of Courts, and it is absolutely unnecessary for me to say another word with reference to that. The question of the independence of the judges is a most important question for this country. There is no greater tyranny than the tyranny of absolute democracy, and the only protection against that is the independence of the judges. Therefore, when we come to consider this Bill, it will be the duty of the Seanad to consider whether these clauses which have been referred to by our Chairman can be allowed to stand at all in their present shape. In England, which, after all, is the home of liberty, as far as the administration and independence of judges are concerned, the judges make their own rules without even having to get them through the Home Office for a moment. Why should they not be masters in their own houses, and why should the Minister for Home Affairs be between them and their own rules? There are in this Bill one or two provisions which I think it is necessary to refer to. The first of them is one which you will find in Section 44. It is in Part II of the Bill, which deals with the Jurisdiction, Constitution and business of the Courts, and which reads as follows:—
"In case the accumulation of business so requires there may be appointed such number of temporary Assistant Circuit Judges on such terms and conditions as the Minister for Home Affairs, with the concurrence of the Minister for Finance, may determine: Provided that no person not qualified for appointment as a Circuit Judge shall be appointed a temporary Assistant Circuit Judge."
Now, that means that temporary judges, who will have the most important jurisdiction as Circuit Judges, may be appointed by the Minister for Home Affairs on such terms and conditions as he shall think fit. I daresay all the members of the Seanad remember certain magistrates in this country who were described and denounced as removables. Now, temporary judges appointed under Section 44 would be the worst class of removables. They would be the worst class of removables, especially at a time like this. They are to be appointed when there is an accumulation of business. Now, the only accumulation of business that is likely to occur within a short time after these Courts are set up is an accumulation of business which exists already in the country owing to the enormous number of claims for compensation for malicious injuries. In all of these cases, for all practical purposes, the Government is one of the parties concerned, and under this Section the Minister for Home Affairs has the right to appoint a removable Judge, a temporary Judge who will have to decide in cases of that kind between the claimant and the Government. I cannot imagine a more objectionable tribunal than that. And here again we have what is a direct interference with the independence of the Judges, or rather you would have Judges appointed who would find it very difficult to be independent. And even if they were independent it would not be believed very often by some of the poorer litigants who come before them. And that is often quite as harmful as if the Judges were in fact not independent. There is just one other matter that I think I may refer to as one which the Seanad ought to consider very carefully in committee. You will find if you turn to Clause 74 which deals with the jurisdiction of the District Courts—with their criminal jurisdiction—and if you go to Clause B at the top of page 17, you will find in criminal cases:—"In any of the following cases if the Justice shall be of opinion that the facts proved against the accused constitute a minor offence fit to be tried summarily"—the offences include larceny, receiving, embezzlement or false pretences, assault, burglary, and certain forms of conspiracy—I need not go through the whole lot—he may try them summarily. There is a proviso at the end, "that a sentence of six months' imprisonment, with or without hard labour, shall be the maximum sentence to be imposed in any of the said cases, disposed of summarily."
Now under that Section the District Justice can give himself jurisdiction to deal summarily with these serious crimes by coming to the conclusion, in his own mind, that the offence is a minor offence. It is true that the maximum penalty is only six months. But to the ordinary citizen the serious thing is not so much the six months— that is not the point—but the chance of being convicted of a serious crime without any appeal. The section deprives him of the right of appeal and surely the ordinary citizen when accused of serious crime should have the choice that he has at present, and the choice he has at present is that he can say "Send me before a jury." But he should have the choice. This practically takes away from persons charged with extremely serious crimes, at the ipse dixit of the magistrate before whom they are brought, the right of trial by jury. There is just one other matter that I would like to refer to, and as to which I would like to make a suggestion——
AN CATHAOIRLEACH
I do not think, Senator Brown, that you are correct in saying that any conviction by the District Justice is not subject to appeal.
Yes, it is subject to appeal. What I complain of is that he has not the right to go before a jury.
AN CATHAOIRLEACH
The decision is subject to appeal.
Of course it is subject to appeal. If he gets a sentence of more than a month he has the right of appeal, but he should have the right to go before a jury in a case of that kind.
Just one other matter on which I wish to make a suggestion, but it is really a matter for the Rules. Provision ought to be made for the establishment in connection with the High Courts of a Commercial Court. Now, the general complaints of business men with reference to litigation in this country is its delay, and that can be avoided by having here as they have in England, a special commercial list, the dealing with which is assigned to a particular judge, generally a judge who has had a good deal of experience at the Bar in this class of business. You could have a commercial list, the cases on which will not have to go through the rather tedious process of pleadings and discovery and that sort of thing which often takes weeks and months. In cases of this kind they can be tried without pleadings and without discovery, and the whole thing would be over within a month. That would be a very beneficial thing for the commercial classes of this country, and I hope that when the matter comes before the Rule Making Authority they will see their way to establish some Commercial Court of that kind.
We have heard speeches from gentlemen of the long robe so far, and we listen to them with very much interest and with considerable enlightenment. I intervene in this discussion as an ordinary layman who knows very little, fortunately, about the law. But like everybody else who is interested in this country I believe that this is the most important measure that ever came before us, and it may be the most important measure that will ever come before us, and without having any personal interest in the issue I think, as a citizen, it is my duty to offer a few remarks to the Seanad with regard to it. We are all of us practically concerned in the pure and efficient administration of the law. In democracy it is the chief anchor of the citizens; it is the main interest and the main concern of the ordinary man in the pursuit of his ordinary vocations. In regard to this measure there are one or two points—as I said I am not an expert of a lawyer—that give me some cause for hesitation. I would like to say at once that I am, and always have been, a great admirer of the Irish Bar, and a great admirer, broadly speaking, of the Irish Judiciary, and I think that the tradition that these men handed down to us, the great institution which numbers amongst its members men whom you, A Chathaoirligh, have recalled—Plunkett, Curran, Bushe, Day, and Palles, and many others—I think a great institution like that in any country would be entitled to the consideration and reverence of its citizens.
I am very much concerned as a mere Irishman in the honour of the Irish Bar, in the proper respect and reverence for its great traditions, and personally I should like to say that I will never willingly be a party to any proceedings that might detract from its honour or infringe upon its great traditions. Now, there are just two points that I would like to allude to in the few remarks I intend to offer to the Seanad. The first is one on which you touched, sir, and that is the independence of the Irish judiciary. The Seanad will not forget that it took a revolution in England to establish the independence of the judiciary. Three hundred years ago that independence was established, and, broadly speaking, has been maintained ever since. As far as the Irish judiciary is concerned, it has been criticised, it has had its opponents, but I am perfectly convinced that the Irish judiciary has invariably maintained its absolute independence. We should be very careful, I think, in taking any steps that would interfere with this absolutely priceless position. I am not sure that the Clauses dealing with the rules of court are not dangerous clauses. I am not sure that the issue raised in connection with the retirement and pensions of judges is not a dangerous provision. And on these matters I would like—and I speak for other Senators in this as well as for myself—I would like to maintain an attitude of absolute independence until the Bill comes into Committee and we consider amongst ourselves what steps are best to be secured.
There is another point. It is said in support of this measure that it is going to give cheaper law to the country. I am not sure that it is going to give cheaper law to the country; I am not at all sure it is going to give the country better law, and I am not sure it is going to give the country as sound law as it is getting at present. These are points on which I wish to reserve absolute freedom of action. There are smaller points we may suggest in Committee, such as the recognition of the disabilities of Irish-speaking litigants in certain quarters; that is a point we shall take occasion to raise in Committee. There is a further matter that the Seanad will do well to consider. We are to attempt to limit the formalities and display in our administration, but we should be careful, I think, in doing anything that would make a wide and marked difference between our new administration, and the law as it is. It may conceivably be that wide difference in our administration might make a dangerous obstacle towards the re-union of the country. These are points I felt it is my duty to deal with. On the other matters I and those with me intend to preserve absolute freedom of action when we come into Committee.
I should like to draw attention to Section 60 in the Bill. You, sir, have been good enough to make reference to some of the provisions, but I think, from my own experience in the West of Ireland, that you will have very great trouble as to that in satisfying litigants who up to this have had the advantage of having their cases heard by County Court Judges, and then be able at a comparatively trifling cost to appear at the Assize Courts, sometimes a couple of weeks afterwards, and at most two months, and where they had the advantage of having their cases heard by the most eminent Judges we had in Ireland, such as the Lord Chief Baron Palles, Lord Justice Fitzgibbon and Judges of that sort. They were in a position to examine and cross-examine the litigants and, judging by their demeanour and in many other ways, were able to come to a conclusion as to which of the litigants was telling the truth. What are you going to put in place of that? You are going to have shorthand writers taking down this voluminous evidence. You will have cases where you will have six or seven witnesses for, and as many more against, whose evidence will be taken down in shorthand. From my knowledge of the patience, care and time Judges have taken in the hearing of cases—I have known a case to last two days—these records will be heavy. All this evidence has to be transcribed and brought up here, and then the Judges reading over the shorthand notes have to come to a conclusion as to which is right and which is wrong. I think it would be necessary to send these documents by goods train, from my knowledge of records. I am sorry to hear that your experience, sir, in some respects was not satisfactory, but I do not think that that was generally the case. I know that litigants, even if they lost their case on second trial, felt that justice had been done. I do not believe they will think that justice has been done when their cases are decided by the reading over of shorthand notes, and when they have not the opportunity of amplifying their case.
I speak with some diffidence after the very eloquent speeches that have been made in connection with this Bill. The title "Courts of Justice" will, I hope, be borne out and justified in practice. No doubt it is the aim of the Bill to set up such Courts as will secure the confidence of the people in every part of the Free State. In that connection references have been made to the absolute fundamental necessity of having our Judges entirely independent, and that goes without saying. References have been made to parts of the West, and the confidence the people had owing to the right of appeal and having their cases heard before eminent jurists and judges. Well, there is more than that in the extreme West. I do not think that the people, although they had that right, had entire confidence in the ultimate result of their litigation that justice would be done to them. I speak now of those districts in the extreme West, where the people are mainly Irish-speaking, and where, when they come into Court, they feel themselves considerably handicapped by having their evidence communicated to the Bench or Judges through an interpreter.
Some professional men who have been on those western circuits, have told me that even in bilingual districts where the respective litigants have been at some pains in acquiring some pidgin knowledge of the English language, that it was painful at times to witness the efforts of these native Irish speaking litigants in trying to convey their opinions and impressions in English, owing to what they felt to be the rather uncongenial surroundings to which they were not accustomed. In the excitement of cross-examination they broke away into their own language, and had to be pulled up. They felt that speaking in the language they had partly acquired they were not doing themselves justice, and they broke into their native language. Cases have been known where in the interpretation of their language by the interpreter an absolutely opposite meaning was conveyed to the bench owing to ignorance or want of qualifications on the part of the interpreter, or otherwise. These lapses were made public in the district and tended further to a want of confidence in the administration of the Courts in these principally Irish speaking districts. I have been approached—possibly I was selected because I sprung from an Irish stock, and my uncle, William Williams, was supposed to be the greatest living authority in his time on Ogham writings, and was also founder of the Keating society—in this matter, but a far better medium could have been selected, because I am not an Irish speaker. I have been brought up in that atmosphere, but owing to my long absence from this country I have not developed into an Irish speaker. As far as practicable—it may not be feasible at the moment—I suggest the grouping of counties that are essentially Irish speaking, and making a circuit of them. You may not find an Irish speaking judge capable of being appointed; that would be rather too much to be expected, though there may or may not be such a possibility, but I think that it is due to the interest of the administration of justice and to these people who are purely Irish speakers. It is not their fault that courts are not constituted to enable the proceedings to be carried through in the native language. It is rather our fault, and it is up to us to meet the just requirements of these people in the interest of justice, and also in the interest of the language. If the language is to make any definite progress in this country we must press into service the schools, the courts of law, the pulpit and the forum. These are the four great agencies, and now we have the opportunity in the reconstruction of these courts to press this point, and to ask the Government to make some provision whereby this long deferred want will be supplied to these unfortunate litigants in the predominantly Irish speaking districts in the West.
In dealing with the amount of claims under £300, you said defendants, as I judge them, would be called on to go down into the country, and the plaintiffs would be in the country. I am afraid, as a matter of fact, that in business it is the other way about. In business, credit is given by residents, not citizens, to the people living in the country, and the claims originate in the towns, and the defendants are in the country, and in considering this clause I would like Senators to think it over while we have time, before we get into Committee. Credit is an essential necessity for the country, we all know, but the essential of credit is that the individual who gives it knows that he can easily and cheaply recover his debts, that he has a tribunal which will respect his rights, and that applies equally in the case of the debtor. When he knows he will be compelled to pay, he will be very slow to incur debts if he cannot pay.
If we make the process of recovery of debt expensive, a £300 limit would cover a very large amount of business debts. If in every case up to such a figure as that, those who gave credit have to go down to the country towns with all their witnesses and books, and establish their claim there, it will, I think, undoubtedly add to the expense. And I am sure that those who are giving credit will not think that they will be as certain of recovery as they would if they were taking the action into a court in Dublin before another judge. Of course, the argument will be that the other side got off cheaper, but I am arguing if going to court increases the cost of recovery of claims for debt in the country by those who are to give credit, and if that limits the amount of credit they give, we may be damaging the interests of the country in a way we do not expect. Therefore, that clause should be looked into, especially by the business men of the Seanad, who should think over what should be the amount of that claim.
I think from what Senator Kenny is discussing about the Irish language, that it gives some inkling of the reason why the Government are taking some of the steps to which you refer, sir. There is no doubt, as we can see from the beginning of the President's letter to the Committee on which you acted, that the Government are referring to a feeling which we all know exists in the Irish Free State, that there should be marked a difference between things as they were and things as they are. I would like to say this, that I do not believe that the Seanad will be, in the least, found wanting in assisting in that part of the matter. We are not here in any shape or form to interfere with anything connected with the aspirations of the people of the Irish Free State. Our being here, our acting here, is a proof that in every way we can we mean to aid the Free State in its best aspirations. I would like to say that, because when we come to debate Committee amendments on a Bill like this, we will have difficult times undoubtedly, and as we debate them I would like it to be recognised by everyone here that when we bring forward amendments, and criticise provisions of the Bill, we are doing it because we think it is our duty to the citizens of the Irish Free State, and for that reason alone.
I really suppose such remarks are hardly required, because I am beginning to believe people of the Irish Free State do think that we here are all trying our best to assist them and help them. I do think that spirit would be very necessary, both in this House and in the Dáil in some of the difficult times that are ahead of us, and that between the two Houses it will be necessary. I believe myself that our two Houses are working together to the best of their ability, for the benefit of the State, but it will require care and a great deal of give and take probably, and a recognition of the honourableness of the motives of those who disagree with us. I am sorry to have taken up the time of the Seanad with such remarks, but I think they are not inappropriate at the present moment.
I should like to say a few words on an aspect of the Bill which has already been touched upon by members, some of whom are well qualified to speak on the subject. As an ordinary citizen I cannot help adding my quota to what has been said on the subject of the independence of the Judiciary. If this Bill is passed as it is there will be a marked interference with the independence of the Judiciary. I do not think anything worse could happen. We are legislating now for a permanency. You will not always have the Government that you have now. It is quite impossible for any member of the Seanad to know what future Government he will have to deal with. In my opinion the judge administering justice should not have to consider the opinion or the interest or the notions of the Minister for Home Affairs, or any other Minister. It is deplorable.
If you pass the Bill as it is you will get a right or wrong combination of a Minister or Judge, and injustice may be done. That there should be a possibility of that is defamatory to the interests of the community. I can see no country where it is more necessary that there should be confidence in the Government than here. It is absolutely necessary. If you have a Government interfering with the administration of justice you will have people feeling that they have not been justly treated, that they have not got independent justice. People who do wrong and get punished for it by courts of law, or by any Government action, may feel bitter, but they will not be so effectually bitter, or such enemies of the State as the man who has not done wrong and who, having come to the courts to get justice, did not get it. He would be more effectually an enemy to the country. He will never forget it. That there should be any possibility of people failing to get justice is deplorable, and I hope before the Bill leaves the Seanad we shall have introduced amendments to remove that feature.
From a layman's point of view, I rise to support the Bill. Having listened to the masterly speeches that were delivered, I also realise that some very drastic changes in it will be necessary. The Bill is an effort by the Government to restore in the minds of the people a confidence in the law that is necessary. Speaking as one from the backwoods, I can say that such an effort is necessary. Notwithstanding the high position that the Bench and the Bar has attained in Ireland, there is, in the minds of the people still, a feeling that in the days that are past they did not get that full justice that should have been equitably meted out to them. Further, from the commercial point of view, the people in country districts suffered great hardships by having to bring witnesses up to Dublin. If a case was heard on Friday and had not concluded, it was adjourned, and the parties had to return to the country and come back again on the following Monday. The expenses attending such litigation was enormous. In many cases people felt even if they had a good case that the cost and the trouble of bringing it on was so great that on consideration they abandoned it. I am sure that this Bill will alter conditions like that.
In addition certain traditions have been built up and surround the Bench and Bar in Ireland that are foreign to the Irish people. It is only natural and reasonable that an effort should be made to alter them. I hope in any alteration that is made we will find nothing irksome to any of the parties concerned. I feel that such a Bill is necessary. The people feel that a change is needed and that satisfaction in these matters will not exist until drastic changes in the Courts of Justice have taken place.
I should like to deal with one aspect of this Bill which has, I think, not been referred to on the Second Reading. It deals with the financial aspect. In seeking for guidance, the only reliable thing we have got—and I am afraid it is not reliable —is the White Paper that was issued. If you examine it, it purports to show a statement of the gross cost of the present judicial system. That is not a correct description. It is an estimate. The gross cost of the present judicial system is not mentioned. It is the cost you arrive at after certain estimated decreases which are admitted to be overdue are made. It is quite possible these estimated savings might be further enlarged so as to bring about a saving on the present Bill very near the estimated cost of the new judiciary. There is only 14 per cent. difference between the present economies on the present judiciary and the estimated cost of the future judiciary. Those with experience of Government matters have reason to believe that you could very easily stretch the axe and get an additional 14 per cent. On the general question it is rather unsatisfactory in a Government document, to which one looks for guidance, that so much caution is taken. In the figures as given, the costs are contemplated as an estimate. That shows you have to take them with great caution. There is a foot-note which states: "It will be understood that the portion of the statement which refers to the future cost must be taken with the necessary reserve, in the case of any attempt to forecast the probable cost of a system which is not yet in being." At least it has not been settled. The only point I wish to make is that anyone who is going to argue that the new Judiciary under the Bill is going to effect any saving has no reliable data on which to found his case.
Before dealing generally with the subject of this Bill, I should like to express in the Seanad to you, A Chathaoirligh, what we have already expressed in the Dáil, that is, the keen appreciation of the Government of the work which you did as Chairman of this Committee, and of the great pains the Committee took to furnish a report which would conform with the terms of reference, and with the letter which I had the honour of sending you on the 20th January, 1923, dealing with this matter of a reform of the Judicial system generally in this country. This is a matter upon which laymen have a very considerable hesitancy in venturing to speak, but I think that it would not be unwise that I should say at the outset, in answer to Senator Sir John Keane, that the case he has made as to the unreliability of this return, from which he read out some extracts, is one which, I think, on further examination he will admit the criticism does not lie as strongly as he presented it to the Seanad. I think it will be generally admitted that under the old system the County Court Judges had not got continuous employment. That, I suppose, would probably be the best way of describing it. Although there was continual payment, it is generally admitted, I think, that in something like four months in the year they could have done the work they were called upon to do. They had at most four months' work in the year, although they got payment for the full twelve months. It was not their fault. It was the fault of the system. That is one of the things remedied in this Bill. The salaries it is proposed to pay in the Higher Court and the Supreme Court must also have a relation in the ultimate cost of the system as propounded in the Bill. I think from the point of view of economy there is no doubt whatever but that the recommendations of the Bill must eventually mean substantial savings, in the cost of these particular services, to the State.
I do not know whether every member of the Seanad has got a copy of the report of the Judiciary Committee. But if not I will undertake to have copies circulated. The point that was made by Senator Jameson, and which, I think, up to the time he spoke had not been stressed, is one which, I am sure, the members of the Seanad will take into their serious consideration in approaching their decisions on this Bill, which has been described both here and in the Dáil as one of the most important which the Oireachtas can be called upon to consider during its whole time of office. The first point, A Chathaoirligh, which I think you put in your admirable analysis of the Bill was, that this Bill did not deal with details, such as the staff and the establishment to be set up under the framework. This Bill simply creates the judicial framework, and further legislation will be necessary to set up the staffs and the establishment. In the meantime the Courts having been established and the judges appointed, the Rule-Making authority can be appointed and get to work. It is only when their work has been done that the staffs and the establishment generally can be worked out. That may not be a method which would commend itself to some of the members of the Seanad. But that after very careful consideration was what, in our judgment, would appear to be the best method to adopt. With regard to the particular clauses which have come under the displeasure of two members of the Seanad, An Cathaoirleach and Senator Brown, who are best qualified to speak on behalf of the Bar and Bench, I should say it did appear to me that a little too much stress was laid upon a clause which in its relative importance did not assume the same proportions, to my mind, as many of the other clauses of the Bill. But that is a matter of judgment, and I am sure I would not dispute the right of such capable members of this Seanad to decide what is, or what is not, an important clause in this Bill. However, the fact is that particular objection is laid to the method and to the proposals embodied in the Bill for dealing with the rules or the Rule-Making authority. Formerly it was the Lord Lieutenant who made those rules. The fact that no rules were made which were not approved of by the judges is certainly beside the point. If the case made in this particular instance is that it is the Minister for Home Affairs whom it is proposed shall perform that particular office, the Minister for Home Affairs will not make rules without the concurrence of the majority of the Committee. In the former case I do not know that the Lord Lieutenant was delimited in his authority to the same extent. The fact that the practice was, that no rules were made save by the authority or consent of the judges, scarcely alters the case. It appears to me on the face of it to be two parallel cases, the difference being that in one case it is a Minister elected by the people, and in the other case it is a person appointed by the Government of another country, which is referred to in the letter addressed by me in my capacity as Chairman of the Executive Council of the State to An Cathaoirleach, Lord Glenavy, when asking him to act on this particular Committee. Now, the next point is that power is reserved to alter or annual these rules, only with the concurrence of a majority of this Committee. I do not know that there is any more democratic method that can be suggested. The fact that the Minister for Home Affairs and the Minister for Finance come in does not, to my mind, or to the minds of the Executive Council, or the minds of the Dáil, interfere with or limit in any way the independence of the judges. If it does, then it would appear that there is a claim made in respect to one particular profession in this country, a claim for independence which is denied to other professions or other citizens of the country, and that is a claim which I do not think would be put forward by either the Bench or the Bar.
No reference was made to the fact that in Clause 97 all rules of Court made under this Act shall be laid before each House of the Oireachtas within 14 days after they are made. Is it denied that the Oireachtas should have a voice in such matters? I do not think that any such claim has been put forward up to this, and I do think, with all respect to the Bench and the Bar, that some regard must be had to the necessary economies which must be made in this State. The necessary precautions have been taken in this Bill to ensure that the responsible Minister will have some control over those matters. No member of the Executive Council or no officer of the Government ever intended to impose any particular mode of dress upon the Bench or upon the Bar that they themselves were not inclined to approve of. But if at any time either now or in the future a change should come over the tastes of the people and a new order should arise in the country which would wish to have no particular gown or wig such as is adopted in most countries, and that the people should appear in ordinary dress in these courts, are we now to set a particular standard which future generations will be bound to copy whether or not they like it? The order is going to be established now. About six or eight months ago I noticed in the Continental Press, and in the English Press, references to the effect that the Attorney-General wished to do away with the wig and gown. Having been present when the Attorney-General was stated to have given the interview, I know that he made no such reference to the dress. It was served up in the British Press, and I suppose members of the Bench and Bar may have taken exception to it, but the fact is that no such statement was made. Having been once circulated in the Press, it is not easy to catch up upon it, and I suppose the view is held that it was his desire to abolish them. If there be a prescribed mode of dress agreed upon, it can only be with the concurrence of the majority of this Rule-making Authority, and the fact that the Minister for Home Affairs makes the order will not affect the judgment or the independence of the majority of the Committee in adopting that particular form of dress.
There were some other points mentioned in the course of the discussion which, I must say, was very able and very favourable generally towards the Bill. But I think it would be better that I should defer answering any criticisms that have been made until we reach the particular clauses in question. I have only to say, in conclusion, as I have said in the Dáil, that we are under a very great debt of gratitude to you, A Chathaoirligh, for the very capable manner in which you presided over this Committee, and for the admirable report which, broadly speaking, was the mandate for this Bill which is now submitted to the Seanad for their consideration.
Question—"That the Bill be read a second time"—put and agreed to.
Third Stage ordered for Wednesday, the 23rd instant.
AN CATHAOIRLEACH
That concludes the business on the Orders of the Day.
I move the adjournment until Wednesday, 23rd January, at 3 o'clock.
Agreed.
The Seanad adjourned at 4.50 p.m.