FISHERIES BILL, 1923. - SEANAD IN COMMITTEE.

Bill considered in Committee.
SECTION I.
This Act may be cited for all purposes as "The Courts of Justice Act, 1923."

I beg to move that "1923" be altered to "1924."

Amendment agreed to.
Section 2 put and agreed to.
SECTION 3.
In the construction of this Act, unless there is anything in the subject or context repugnant, the several words and expressions hereinafter mentioned shall have or include the meanings following, that is to say:—
"Central Criminal Court" ("Príomh-Chúirt Choireamhail") shall mean the Judge of the High Court, to whom is assigned the duty of acting as such Court for the time being;
"Commissioners of the High Court Circuit" shall mean such judges or other persons as have been heretofore named in Commissions of Assize, to whom there may be assigned the exercise of any criminal jurisdiction capable of being exercised by the High Court;
"Court of the High Court Circuit" shall mean the Court of any such Commissioner of the High Court Circuit;
"District Court,""Circuit Court,""High Court" and "Supreme Court" shall mean the Courts of Justice of Saorstát Eireann so named in this Act;
"In lunacy" shall mean in relation to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind;
"In minor matters" shall mean in relation to the wardship of infants, and the care of infants' estates;
"Land" shall include all incorporeal as well as corporeal tenements and hereditaments.

I beg to move:—

Section 3, line 35, To oinsert after the words "of any" the words "civil or."

Obviously it would be an advantage to include civil cases. I am glad to notice that the number of criminal cases is reducing. With the present able Government conducting the affairs of our country, I believe they will become less and less as days go by.

The object of this amendment is to make it possible to try civil cases in the High Court of Justice outside Dublin. It may be very convenient to have a record tried in Cork, Limerick, Waterford, or some other large centre where, for instance, a new jury would be necessary, or something of that kind. It might be convenient at some time under this Act to have a civil circuit as well as a criminal circuit. It might not be put into use, but I think it would be wise to take the power. It can do no harm, and it is there if it is wanted.

I wonder would the Senator be agreeable to the postponement of this until we consider it? The proposal, as far as we can see, is one to which there is no objection, and the only point at issue is the place where it ought to be put in. I would like to have a little time to consider it.

AN CATHAOIRLEACH

That seems perfectly reasonable. The matter can be dealt with on the Report Stage, or later on the Committee Stage.

Amendment deferred.

Section 4 put and agreed to.
SECTION 5.

One thing that has arisen and that will occur again and again. I desire to call attention to now. If I may be allowed to direct attention to Section 5 now, the words "Supreme Court of Justice" occur, and the Irish form is put in brackets. I think several Senators intend, and I intend certainly, to have that altered, so that the Irish version comes first and that the words, "The Supreme Court of Justice" appear in brackets afterwards.

AN CATHAOIRLEACH

What is the Irish version?

Cúirt Bhreitheamhnais Uachtarach. My reason is that Irish is the National language, and all these things should be in the Irish language, except by general agreement. If everybody does not know Irish the English language can be used instead. This occurs again and again throughout the Bill.

I would like to be able to agree to the proposal of Senator Moore, but we are in this difficulty, that after all we are speaking the English language, and this is the description given in the English version of the Constitution. This Bill will also appear in the Irish language, and as such the description will be Cuirt Bhreitheamhnais Uachtarach. That is the only explanation I can give, that in the first place the English version of the Constitution is as it is there. There is also an Irish version of the Constitution, and in that Irish version the Irish terms will be given. It will be the same in this Bill.

Question: "That Section 5 stand part of the Bill," put and agreed to.
Sections 6, 7, 8, 9 and 10 agreed to.
SECTION 11.

It is provided in Section 11 that the office of a Judge of the High Court may be vacated by resignation in writing, but it does not state to whom the resignation is to be addressed. I would like to know from the Minister to whom the resignation in writing of the Judge can be addressed.

The resignation in that case is to the Governor-General, who, on the advice of the Executive Council, makes all appointments of Judges.

Would it not be desirable to have that stated in the Section?

I do not think it is necessary.

AN CATHAOIRLEACH

Are you moving that as an amendment?

I move to insert after the word "hand" the words "addressed to the Governor-General."

I suggest that it is quite obvious that a person tenders his resignation to the person who appoints him, and that the amendment is unnecessary.

Amendment put and lost.
Question that Section 11 and part of the Bill put and agreed to.
SECTION 12.
The age of retirement of all judges of the High Court and the Supreme Court shall be 70 years, but the Executive Council may, after consultation with the Chief Justice and the Attorney-General, extend the age of retirement in the case of any judge to 75 years.

I move in Section 12, line 2:—

"To delete the figures 70 and substitute therefor the figures 75."

This amendment and the next amendment—in Section 12, line 2, to delete "all" from the words "but the Executive" to the end of the Section —relate to the one thing. The object is to make the retirement of a Judge of the High Court of Justice, or of the Supreme Court of Justice, take place automatically at a certain age. The Section as it is in the Bill fixes the age of retirement at 70, and gives power to the Government "after consultation with the Chief Justice and the Attorney-General, to extend the age of retirement in the case of any Judge to 75 years." Now, the Section, as it stands, puts the Judge in a most invidious position when he arrives at the age, say, of 69. For twelve months he is at the mercy of the Government. He does not know what is going to happen.

That is not a position in which a judicial person should be put. I do not suppose it would affect his mind at all during that twelve months in deciding a case in which the Government was involved, but if he did happen during that 12 months to give a strong decision in favour of the Government a number of people would at once criticise that decision and say: "He is deciding in favour of the Government because he is 69. He will, therefore, try next year to be kept on until he is 75." That is not a fair position, nor an honourable position to put a man in. I am anxious that this Section should be amended in such a way that whatever age is put in it should automatically work, and that there should be no possibility of a judge being for a moment at the mercy of the Executive. I am suggesting the age of 75, as I know from experience at the Bar that it is an extremely rare ease in which a healthy judge has not been able to perform his functions perfectly well up to that age. I am, however, quite willing to recognise that others may not be of that opinion, and if the Seanad is of opinion that the age of 75 is a little too old, I am perfectly willing that the amendment should be altered to say 73. I would insist, however, that whatever age a judge is to retire at he should retire at that age, and that there should not be any period of extension at the mercy of the Executive. It really in a way affects the question of the independence of the Judiciary, and that is a thing that should not be interfered with. I therefore move that the figures 70 in line 2 be deleted, and that the figures 75 be substituted. The second amendment proposes to delete the rest of the Section.

I am in agreement with the spirit underlying the amendment, but I could not support a proposition that every judge might remain a judge up to the age of 75. After all, three-quarters of a century is a very long time, and I think it is desirable that 70 should be the maximum and absolute limit up to which judges should have the right to stay on.

After all, the experience of the ordinary layman is that Judges over 70 years of age, with of course a few exceptions, generally get out of touch with modern developments, and even with the law itself, and are coloured by the outlook and prejudice of past generations, and find it extremely hard to keep in touch with the legal developments of later days. They have, I think, often caused a great deal of anxiety to lawyers themselves, who find it impossible to convince an old addle-headed man in regard to laws recently enacted. In these circumstances, I think it would be extremely undesirable to raise the limit to 75 years all round. There is a good deal in the argument of Senator Brown as to the right of the Government or officials to extend the age, although I can see it may be a loss to lose a judge because he is 70 years old. I think, however, the advantages outweigh the disadvantages, and for that reason I would vote against the amendment, but I do not think it would be wise to press it to a division.

I think if we get rid of the alternative, the case would be met, because the position explained by Senator Brown is caused by the anxiety of the judge to know what is to happen to him at the age of 70. As regards the independence of the judge being interfered with by this clause, it is not to be suggested that all the senility of the country is to be monopolised by the Bar. It is almost anti-Scriptural to carry on after 70 years of age. I heard a case of an excellent Judge in India who frequently condemned the advocate to death, and sometimes addressed the criminal in equal terms. Seventy years is five years in excess of the usual Civil Service limit.

I think it is rather in the interests of the Bar itself that the amendment should be carried.

I think Senator Gogarty, in dealing with the senility of the Bench, has not called on his own experience. I think he must admit that many of our great judges, well over the age of 70, could not be called senile. Quite apart from the question of the Judges, I think that probably the Government in putting in this clause, as they did, were taking care of the public purse. It is an expensive thing to retire a man five years before he need be retired, and pay a successor. In the balance of years it will come to a good deal of money, and I doubt if it is wise for us to turn out our judges at 70 years of age, on the presumption that all persons at 70 are becoming senile. That is against the experience of all those who have known the judges of Ireland in the past twenty-five years, which has been the length of my experience of them. I should have thought that the Government would be quite right in exercising its right to continue them for five years, so long as the office continued to be filled with efficiency.

I think Senator Brown is absolutely right when he said that it puts the judge in an extremely unpleasant position and is one which the Seanad, if it is wise, will relieve him from. The mere implication that a man in the position of a judge can be actuated by any feelings. such as those regarding his own future in regard to the Executive under which he acts, ought at any cost be kept out of any Judiciary Bill which the Seanad may pass. I hold that you should follow Senator Brown's suggestion, though Senator Gogarty and Senator O'Farrell believe that it ought to be the age of seventy. So far as economy and common sense are concerned as well as knowledge of the past, I believe that it would be right to go up to the full age of 75. As I am approaching rapidly the age at which we are all supposed to retire I do not like to say much more, but the leaders of the Government are youthful, and I hope they will give us their opinions. I would ask the Seanad to make a definite period for the retirement of the judge.

I wish to support the remarks of Senator Jameson. So far as I have noticed, the members of the Bar promoted to the Bench have been promoted when advanced in years for the most part, and where some men appear to be quite old in the early sixties, others appear to be young even when long past the period of three score years and ten. It should be remembered that some of the greatest speeches made by statesmen here or in Great Britain were made by men like Gladstone, who had reached four score of years.

I wish to speak in support of this amendment. I do not know as much about the Judiciary as many members of the Seanad, but I have had a very wide experience of this question of retirement at a certain age limit. I have considered hundreds of cases, and have given them my personal attention. My experience is that I have been far more impressed by the waste of good talent caused by enforced retirement than by the continuance at work of men who had passed their period of efficiency. It seems to me that in the case of judges you are considering positions in which wisdom and experience are the qualities particularly needed. They are the essential qualifications of a mature age, and I think if the age is fixed at seventy a great deal of judicial talent will be lost to the detriment of the public purse. I strongly support the alteration of the retiring age from seventy to seventy-five.

AN CATHAOIRLEACH

Perhaps before the President speaks I may say a word on this subject without leaving the Chair. I have the strongest sympathy and support for the suggestion that, whatever the age limit is to be, it should be a definite one, applicable all round, and that there should be no power in the Executive, or anybody else, to prolong that period, because, as Senator Brown has pointed out, a judge under this Section would, from the time he reaches the age of 70, be dependent for five years upon the discretion of the Crown, whether he was to continue or not. I think that that is not a proper position in which to put a judge. It is obvious it will give occasion for suspicion, probably unfounded, but the public mind is so anxious and particular about the independence of the judges it would give ground for suggestions that he was influenced for or against the Government, as they determined to retain or get rid of him. I urge on the Government most respectfully that whatever age they agree to adopt it should be definite and applicable all round, with no power of extension or remission. When we come to the question of what that age should be, I should remind the Seanad of what, apparently, has been overlooked so far. Under the old British Constitutional practice, under which our judges up to now hold office, they held it during good behaviour.

Therefore, there was at no time any power to remove a judge who had manifestly become either physically or mentally incapable unless he was willing to recognise the fact himself and retire. Speaking almost universally, the Judge did recognise the fact for this obvious reason. He lives and does his work in the eyes of the public and of the profession, and no self-respecting Judge, once he realises that either through physical or mental infirmity, he has become incapable of discharging his duties has, in my long experience, ever held out against public opinion in that respect. On the contrary, I have known some of our most eminent judges, Chief Baron Pallas is a remarkable example, and there is another example of a judge still living, who remained a judge until he was eighty. Each of those two judges were probably the most brilliant members of the Bench in their day, and up to the day they retired. We have on the Bench to-day a judge who is at least four score years. It is the opinion of the profession and his colleagues, and certainly I share in it, that at no time has he shown a higher judicial capacity or greater knowledge of the law than in recent years. If anyone wants an example of virility after the age of seventy, I would recommend him to go for five minutes to the Recorder's Court, and he will come back with his mind completely disabused. The Constitution has altered the tenure of the Judges, because they no longer are entitled to hold office during good behaviour.

They can be removed, and I think this is a very important provision of the Constitution. They can be removed for incapacity. That is the first time that the principle has been asserted, as far as I know, under the British Constitution, in regard to Judges of the High Court. I think it is a wise provision, because it will prevent the possibility of a judge who, by mental or physical infirmity, has become unable to discharge his duty. If he attempts to brave public opinion, and continue after time has warned him, that his faculties are no longer suitable for the position, it is in the power of the Oireachtas to compel him to resign his office. The words are: "The Judges of the Supreme Court and of the High Court shall not be removed except for stated misbehaviour or incapacity." Those words "or incapacity" are in the provision, regulating the tenure of Judges of the High Court. Therefore, it seems to me that people in the country have a complete safeguard in that new provision against the possibility of any judge attempting to continue to discharge his duties if he is unfitted, either physically or mentally. I wish to mention that to show you how important the new provision is. I remember well a case happening about twenty years ago of a judge who, unfortunately, became mentally deranged. Being mentally deranged, he was, naturally, incapable of signing his resignation, and the Government were perplexed to know how to deal with the situation. For a whole year he remained in his office, although during that time he was shut up in an asylum, and the position was finally solved in a way of very doubtful constitutional practice by getting a member of his family to sign his name to the resignation paper. That was the solution arrived at then, but no longer will that be necessary, because under this provision now made, and inserted in the Constitution, a High Court Judge for the first time may be removed for incapacity. Therefore, I would respectfully suggest to the President and his colleagues to give favourable consideration to this amendment, and that whatever view they take as to the age, they should be firm in adopting the suggestion of this amendment, in so far as it determines there is to be a definite age, applicable all round, with no power to discriminate between them. I merely throw this out for the consideration of the President.

In the report which was submitted from the Committee, the only reference I can find on retirement, is that recommended in the case of Circuit Judges, and given as 70 years. We took that to apply to the other cases. We may have misinterpreted the views of the Committee. This matter was under consideration in the Dáil, and the original terminology in this particular clause was altered to read, that "after consultation with the Chief Justice and the Attorney-General." If my recollection is correct, the idea was that in the case of the Chief Justice, the Attorney-General being also a candidate for office, the Executive Council might exercise a wise discretion whether it would get rid of the Attorney-General or the Chief Justice.

I think there is a growing inclination to canvass too much the ability of the Executive Council to exercise a wise discretion in those cases. I think there has not been any case really put forward on substantial grounds showing our inability to deal fairly and impartially, without fear or favour, in connection with these cases. I hesitate to think the time is coming, or likely to come, when any persons in the position of the Executive Council will lightly discharge their duty, or be influenced by causes other than that of the best interests of the country in deciding these matters. You mentioned, Sir, one case in which there was a retirement. There was a common rumour in Dublin regarding another case in which the person would not have retired. I do not know that there is likely to be any conflict of opinion between a Judge and the Executive Council. I think if a Judge exercises the independence he is expected to exercise, and I hope will exercise, and that an Executive Council attempted to interfere with the holding of an office in which he had discharged his duties in the best interests of the country, they would not last very long. I do think it would not be wise to interfere with this section. There was considerable criticism. I think it was Deputy Bryan Cooper who raised the question first; and we met him on it in such a way that there were two persons external to the Executive Council, to advise them on the subject. It is unlikely that there will be a dispute between the two. Granted even that there was, I certainly do not think that it is likely within the next ten, fifteen or twenty years, that you will have an Executive Council so weak and so corrupt, that it will not discharge its duties to the country just as independently as a judge.

I can assure the President that nothing could be further from my mind than to suggest that the Executive Council would not act with the utmost impartiality under the Section as it stands in the Bill. My objection was not on that score at all. It was entirely on the position in which this Section puts the Judge. That, I do not think, has been in any way removed by what the President has said. The only other remark I would like to make is this: that the Article of the Constitution to which you, Sir, referred, is one which I had forgotten, and it entirely removes the objection to the age of 75. I respectfully suggest that the age at which a judge retires ought to be 75. There is in the Constitution a power, if cases arise, which is very unlikely, of dealing with them. I think that the Seanad ought to accept the amendment as it stands.

Amendment put and declared carried.
Question: "That Section 12, as amended, stand part of the Bill," put and agreed to.
Question: "That Section 13 stand part of the Bill," put and agreed to.
SECTION 14.
There shall be granted to each judge of the High Court and the Supreme Court who retires after 15 years' service or upwards in the said courts or either of them, a pension to be continued during his life of two-thirds of his salary at the time he ceases to act as judge. There shall be granted to each judge of the High Court and the Supreme Court who vacates his office owing to age or permanent infirmity after having completed five or more years' service and less than fifteen years' service a pension calculated at the rate of one-sixth of his salary at the time he vacates his office, with the addition of one-twentieth of his said salary for every completed year of service in excess of five such years, such pension to be continued during his life.

I move:—

To add at the end of the Section the following:

"Provided always that there may be granted, if the Executive Council think fit, to any such Judge as aforesaid who vacates his office owing to permanent infirmity before having completed five years' service a pension not exceeding one-sixth of his salary at the time he vacates his office."

If Senators will look at Section 14 they will see that it is the pension section. After having completed five or more years service the judge is entitled to a pension, but he must serve his five years before he can be pensioned, and the words I propose to add would give power to deal with him if anything happened him in these first five years. A judge is not appointed as a young man. He has done a great part of his life's work before he becomes eminent enough to be appointed a judge. You can see a man of great eminence at the Bar becoming a judge and his health breaking down altogether in the first five years. He has been taken from his practice, and he is then entirely at the mercy of the country, and I do think that the Government of the day ought to have power if they think it right to give such a judge, if forced by ill-health to retire, one-sixth of his salary. It is only discretionary, and to pass the Bill without such a clause might, in certain cases, inflict very great hardship which the Government would be powerless to relieve. I should hope that this would appeal, both to the House and the Government, that they would not object to have power to confer what might be a great blessing, and at by no means a high price to the country at large.

I would oppose the amendment because really the suggestion made that a judge at a certain age might take office and within a year or so become permanently disabled and have to vacate that office, to my mind is putting the Executive in the position of having appointed a man who became permanently disabled within twelve months, and it is not a position in which I would like to be put if I were an Executive Minister. I think the plea that a man becoming a judge at a certain age is dependent on the public for the remainder of his days, is hardly tenable, because if a man was worthy of becoming a judge at all I take it that after 50 or 60 years' service he would be in a position to be independent of any such consideration. Senator Jameson has pleaded on the ground of economy for one amendment: I suppose it is not wrong for me to make a plea for economy on another amendment. I certainly do so.

The possible effect of the clause, as it stands, would be that a man of eminence at the Bar on reaching a certain age would not be likely to risk the acceptance of a judgeship on the terms set out here. None of us have a lease of life or good health. Men approaching that age are liable, possibly owing to their sedentary lives, to paralysis and apoplectic seizures and so forth, and a man foregoing practice at the Bar, even when he feels that he has reached an age when he can no longer sustain that practice, and certainly cannot increase it, says: "I will leave this for a position that will bring me in much less revenue, although it may bring with it a certain amount of ease, but I take the chance. If within a year or two any calamity occurs to me, I am left without any remedy, without the power even of earning a livelihood at the Bar as I do now, and without any compensation." A man is appointed and he serves for four years. Something happens to him, and he is rendered physically incapable of performing his duties in court. He becomes permanently deaf, we will say, through a paralytic stroke, after four years, four and a half years, or four years and eleven months. A month after, a colleague, who may have a similar unfortunate stroke, receives for that misfortune a retiring allowance of one-sixth of his salary.

Now, there is a distinct case, but apart from that, if a man did come forward to assist the administration of the country in this very high office, I do not think he ought to be subject to a fate such as that. I think that every man reaching that time of life, with an eminent Bar practice, ought to have assured his position financially for the rest of his years. That may not be always within his power. His investments may have gone wrong, and with the very best intentions he may not find himself, even after a busy life, through various calls that are made on him in a good position, financially, and a pension would be a considerable consideration to him, particularly in keeping up the position and the prestige that is attached to him as a retired Judge of the High Court.

We ought not to put ourselves in the position, or allow it to be said that the State should make such little provision and attach such little consideration to the services of these men in high offices, that when a calamity occurs, for which they have no control, they will be left derelict and in a state of penury, if not consigned to the workhouse. I would be rather for the entire omission of that five years, so that when misfortune overtook a judge he would have at least one-sixth of his salary, £500, and the remaining period of his life would not be very long. You may take it that that would not burden the State for many years, and it would enable him in some form to live in the condition of a man who occupied such a position.

There is a very small question of economy involved in this. There are only eight Judges, five in the High Court and three in the Supreme Court, and the utmost pension any one of them could hope to get under this amendment, if it is carried, would be a sum of £500 a year, and as their numbers are very small it is very unlikely that you will have more than one or two of them drawing pensions at the same time. If I am wrong the Attorney-General will be able to correct me, but I think I am right in saying that the section dealing with pensions for Circuit is similar to this amendment.

Senator Kenny, in support of this amendment, said that if a Judge's health broke down after one year's service he should be entitled to a pension. I agree that every man or woman who gives useful service should, when their health breaks down, be entitled to a pension, but I object to any one particular class of the community receiving pensions when other people are debarred from receiving them. On a former occasion, in this House, I called attention to a very glaring case of want of fair treatment to an employee of the Courts. The Courts cannot be carried on without a competent Judge, but the other officials in the Court are equally necessary. A Judge's health would soon break down if there was not some woman to clean the Courts. The case I called attention to was that of a woman who had been employed for 36 years continuously in the Courts and she was dismissed, at a fortnight's notice, with no pension. I say if it is fair and just to pension one servant of the State it is equally fair and just to pension every servant of the State who gives good and faithful service. I have no objection in the world to the Judges receiving a fair pension on the completion of their service to the State, but there should be equity. I have searched through this Bill, but not being a lawyer I cannot find any Section of this Bill to which I could move an amendment that would get in the point I want. I am taking advantage of this opportunity to put my views before the House and I hope that the President, who I am satisfied has a sense of justice from my experience of him, and the Attorney-General, will be able to arrange that what is known as the unestablished staff should be treated in the same manner as those who are established.

I am arguing this case because of the fact that under this Bill Judges will be entitled to pensions. Quite right. If they give good and faithful service, by all means give them a fair pension when they have served the State well, but I say if it is just in one case it is equally just in another case. For that reason I hope that the President and the Attorney-General will take a note of this particular point and see that the claim we are making on behalf of the people whose salaries during the time they are employed as servants of the State is not sufficient for them to provide for a rainy day is met. People who are in the happy position of receiving a remuneration that allows them to put a little by for their old age are being pensioned and the people who are in the service at 24/- and 25/- a week cannot provide for the rainy day. I am not in favour of the amendment as it is. I suggest that if a Judge was not in the service of the State his health might break down just the same. Five years service is provided in the Bill before a Judge is entitled to a pension, and I think that is fair and just, but the idea of saying that a Judge or any person with only twelve months' service is entitled to a pension is, I think, stretching it too far.

I have to oppose this amendment on the ground of equity and economy. We hear much of economy nowadays. I believe we are all disposed to put it into practice where we find it possible to do so, but it would appear that we are gone economy mad in some respects. I am quite in agreement with the first speaker in saying that a judge under such conditions should be entitled to a generous reward, but I believe that that reward should not be confined to any class of public servants, and that a single class should not have the monopoly of it. I belong to a class of public servants who can claim to have given excellent service to the State. We have hundreds of these men who, after twenty-five or thirty years' service, are either dying in workhouses or living on the charity of their friends. I believe that pensions, such as are proposed to be given to persons in high office, should, in the interest of justice and economy, be given to those who have an equal right in the matter. I am loth to introduce this matter which is personal to a section of the community, but I think it is only fair that if this section is to be generously dealt with, other sections should be taken into consideration. Again, this leaves the Government open to the charge of doing things that would, perhaps, approach corruption. For instance, a lawyer, perhaps, at a certain period of his life is known to be in ill-health. He is appointed a judge by the Executive Council, and in a year or two, not through any sudden change in his health, but in the ordinary course of events, he finds himself incapacitated, and is given this pension after, perhaps, one year's service. We can very easily conceive how the public in such circumstances would accuse the Government of doing something that was not right.

Amendment put.
The Seanad divided: Tá, 16; Níl, 11

  • J. Bagwell.
  • S.L. Brown.
  • Countess of Desart.
  • Sir Nugent Everard.
  • J.P. Goodbody.
  • Mrs. Alice Stopford Green.
  • Sir John Purser Griffith.
  • H.S. Guinness.
  • B. Haughton.
  • Right Hon. A. Jameson.
  • Sir John Keane.
  • P.W. Kenny.
  • Colonel Maurice Moore.
  • George Sigerson.
  • Earl of Wicklow.
  • W.B. Yeats.

Níl

  • J.G. Douglas.
  • T.W. Bennett.
  • Mrs. Costello.
  • J.C. Counihan.
  • W. Cummins.
  • P. de Loughry.
  • T. Farren.
  • G. Nesbitt.
  • M. O'Dea.
  • J.T. O'Farrell.
  • Mrs. J. Wyse Power.
Amendment carried.

That is a victory for economy!

Section 14, as amended, ordered to stand part of the Bill.

Sections 15, 16, 17, 18, 19, 20 and 21 ordered to stand part of the Bill.

SECTION 22.

The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be exercised so far as regards pleading, practice and procedure generally, including liability as to costs, in the manner provided by such rules of court as may be made pursuant to this Part of this Act, and where no provision is contained in any such rules of court and as long as there shall be no rule with reference thereto, it shall be exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred by this Act.

I beg to move:—

Section 22, line 63. To delete the words "including liability as to costs."

The Section as it stands gives to the rule-making authority the power to make rules affecting the liability to costs. The result of that might be, and probably would be, that the rule-making authority would make a hard and fast rule which would work injustice in certain circumstances. It is better to have a statutory provision declaring a general rule as to the liability for costs, with a power to the judge who tries the case to rule otherwise. The costs referred to are the costs between party and party which have to be paid by one side or the other at the end of the case. As a general rule the costs of an action ought to follow the result. The spoils ought to go to the victor. But there are certain cases where that rule would work hardship, and does work hardship, in which the judge ought to have the power to deprive a successful litigant of his costs, owing, perhaps, to some conduct or hardship in the case or some equitable reason. The amendment takes the question as to liability for costs out of the jurisdiction of the rule-making authority, and by the Section which it is proposed to insert between Sections 91 and 92, makes statutory provision as to the liability for costs. That amendment is number 44, and reads as follows:—

Before Section 92. To insert a new Section 92 as follows:—

"Notwithstanding any rules of Court the costs of every civil action and every civil question and issue tried in the High Court or the Circuit Court shall follow the event unless the Judge at the trial shall otherwise order."

It is rather a technical matter, but speaking from my own experience of a very long number of years, it is better to have a rule of this kind definitely in the Statute, than to have it at the mercy of a rule-making authority, who might make a rule which would be so hard and fast that it would occasionally work injustice and hardship.

I beg to second.

AN CATHAOIRLEACH

I have been thinking very anxiously if the Seanad could meet the situation which has arisen. I know it is the universal feeling in the Seanad that they would like to have the Attorney-General's views upon this question. Therefore, I have been thinking over the matter and it occurred to me that we could very easily pass, as the first item in our business to-morrow, a new Standing Order conferring power upon the Seanad to invite any member of the Government, not necessarily a Minister, to attend and have audience with regard to any Bill he was interested in coming from his Department. I do not pledge myself to the form of it, but I will undertake to draft it out this evening, and it can be moved to-morrow before we resume the consideration of this Bill in Committee. If the Seanad sympathise with me in that it might, perhaps, be desirable to postpone the Committee Stage now and resume it again to-morrow after we have passed this Standing Order.

I think that would be very convenient especially as this amendment I have moved is so technical.

AN CATHAOIRLEACH

It is putting an unfair burden on the President. It is not human nature that he could be equal to all these technical matters, and I think it would be a great relief to him, and also an advantage to the Seanad, if we could do what I propose. If that is the view of the Seanad I shall undertake to consider the framing of a suitable addition to our Standing Orders to meet the situation, and the Seanad can pass it immediately after we sit. We can then have the pleasure and the honour of the presence of the Attorney-General.

Am I right in understanding what you are suggesting, that we should adjourn at present?

AN CATHAOIRLEACH

We are coming to important questions. This is one of them. We are coming rapidly to others. Probably we are, or we believe we are, going to set up a Judiciary for all time here. Therefore we ought not to rush it, and there is no necessity to do so. I suggest as we are coming to these important amendments that it would be desirable for us to postpone further consideration of this Bill in Committee until we have given ourselves the necessary power to invite the assistance of the Attorney-General.

Some of us who live in the country are anxious to know if we could meet at an earlier hour than 3 o'clock to-morrow?

AN CATHAOIRLEACH

I will be here any hour the Seanad choses to sit.

I think 2.30 would suit. That would give us an extra half hour.

Will you have time to notify all the Senators?

AN CATHAOIRLEACH

Perhaps the Press will kindly take a note that the hour for the sitting of the Seanad to-morrow will be 2.30 instead of 3 o'clock.

AN CATHAOIRLEACH

Will the President take the amendment now?

I am quite willing to allow it to remain over.

AN CATHAOIRLEACH

I think it would be better. That brings us to the time for adjournment. The Committee Stage of the Bill is suspended, and the only business that remains is the question raised by Sir John Keane.