As the law stands at present, there is only one condition of affairs under which a temporary circuit judge can be appointed. That is when a circuit judge, through illness, is unable to sit. That is provided for in the Courts of Justice Act, 1924. This Bill makes provision that when a circuit judge through illness, or for any other reason, is unable to sit a temporary judge may be appointed to take his place. The reason for this Bill, which I may point out only purports to remain in force for two years, is that at the present moment one of the circuit judges has been called away to fulfil a very important public position for some little time as chairman of a commission. Another of our circuit judges, though he is now after a long illness able to resume his duties in Dublin, is not able, owing to his state of health, to go down to outside counties where his presence is required. It is to enable these temporary difficulties to be overcome that this Bill is introduced. If a Bill of this nature were not introduced and did not become law, it would mean that in certain counties there would be no sittings of the circuit courts and that would be very unfair to litigants.
Courts of Justice Bill, 1929—Second Stage.
In regard to this measure I would like to register a protest against the appointing of temporary judges. If there is one thing which experience has taught us it is that judges must be independent of the Executive. They cannot be independent of the Executive if they are to be temporary judges, to be appointed for such time as the Minister may think proper and to be dispensed with, or probably not appointed to permanent positions if in their period, let us say, of trial they happen to displease the Minister. If an ordinary member of the Government had come forward with a proposal like this I would be inclined to say that perhaps he had not the same experience or the same wide reading that the Minister who now proposes this Bill has had. The great conflict between Parliament and the Minister of the King in the seventeenth century raged round this question of the permanence of the judicial office and the independence of the judges. It is only through the independence of the judges that you can have the supremacy of Parliament. No person knows that better than the Minister who has introduced this Bill.
Of course, I do not object to the appointment of men with judicial experience to act as chairmen of important commissions. They are suitable for such work by reason of their experience, and by reason of the fact that they can, perhaps, keep calm when less experienced men would be liable to get somewhat excited. They have had experience of the conduct of work where witnesses are examined, and are undoubtedly suitable for such work. At the same time, I think their services ought not to be resorted to too freely. A judge's duty is to administer law on the Bench. He should be left on the Bench as far as possible, and it is not desirable that persons filling judicial positions should too frequently be brought into such a position that they would get into the whirl of politics. All I say is that it is not desirable. Of course when a circuit judge is ill it is essential that a judge should be appointed in his place, unless indeed some other circuit court judge permanently appointed could not be found to discharge his duties.
I admit that the business of the country must go on, but what I object to is the underlying idea in sub-sections (1) and (2) of Section 1. There is permeating these two sub-sections the motion of the temporary appointment of judges. Sub-section (1) provides that, wherever, owing to other public duties or services temporarily imposed on him, a judge is required, or on account of illness, or for any other sufficient reason, a Judge of the Circuit Court is unable to discharge the duties of his office, then the Minister proposes to take power to appoint a temporary judge not for the period of the incapacity of the other judge, but for such period not exceeding the duration of such complete or partial inability—"such period not exceeding as he shall on the advice aforesaid think proper." A judge goes on to the chairmanship of a commission. The Minister takes power to go to the Bar and select another man for a month or two to see, I suppose, how he gets on. The Minister does not take power to appoint him for the period during which the other judge is absent. He takes control over the judge.
In the second sub-section you have this remarkable provision:
Every person appointed under this section to act as a Judge of the Circuit Court shall, during the period for which he is so appointed, hold office by the tenure by which a judge of the Circuit Court holds his office.
If that is not giving lip-service to the principle of the independence and the permanency of the judicial seat. I do not know what is. It is the tribute which, I suppose, the intellect of the Minister pays to the constitutional principle that he knows so well. I do not wish, on a measure of this kind, to go too far or to say too much. I would like to repeat again that we are very jealous of the independence of judges. We see in the independence of the judges the only protection there is against Ministers, whether they are Ministers of the Crown, as happened in the seventeenth century, or whether they are Ministers of the Free State as happens to-day. There is always a struggle for the Minister or his staff, his office or his Department to get power. There is always a chafing against Parliamentary supremacy and the liberty of the people. It always seems to be inevitable in the nature of things. It is our duty to watch very carefully, whatever else happens, that the permanency of the judicial office and the independence of the judicial mind shall be preserved.
I am in the happy, but rather unusual, position of agreeing with a great deal of what Senator Comyn has said. For nearly six years I have been protesting against the appointment of temporary judges, mainly for the reasons which have been given by Senator Comyn, reasons which I am sure do appeal to the Minister just as strongly as they do to us. I was glad to see from some observations made by the Minister himself when the Bill was in the other House that he is not going to do this again. He admitted that it was not a practice that ought to be pursued, and I think he more or less gave a promise that he will not do it again. I also agree with Senator Comyn, to a very large extent, when he said that our judges ought not to be taken from the Bench and employed as chairmen or members of commissions. I think that is not a good arrangement. I admit that they are eminently suitable to preside over some of these commissions. They are suited to the job, but the job does not suit them. They ought not to be there because most of those commissions are appointed with a certain amount of political direction in them with which a member of the Judiciary ought not to be mixed up. I propose to vote for the Second Reading of the Bill which is a purely temporary one, but I hope that a measure like it will not be repeated.
The position which this Bill is designed to meet is really not of a temporary character. I think that every lawyer, and particularly the Minister, is aware of the fact that there is the most scandalous congestion of arrears of work in the courts. There are cases in the courts which have been hanging over for a very considerable period and there is no knowing when they are going to be heard. I understand that cases under the Workmen's Compensation Acts have been listed for a very considerable period. The applicants in these cases, while awaiting the trial of them, are suffering considerable hardship. Their counsel are unable to give them any information as to when the cases are likely to be heard. That is because of the vast accumulation of arrears of work in the courts. It is also due to the fact that the Bench generally is understaffed. I think it is time that the question of the proper staffing of the Bench was faced for the reason that the present position inflicts considerable hardship and unnecessary expense on litigants. Our courts, as a rule, are pretty dilatory in their methods and progress, but when you have them, as they are at present, overworked the position becomes very much worse. The practice that has been referred to, of taking the judges away to preside over commissions has accentuated the present position in regard to the accumulation of arrears of work in the courts. I think it is time these temporary measures were dispensed with and that sufficient appointments were made to deal with the business in the courts.
If there is anything calculated to break a person's heart and to rob a well-to-do man it is to enter into litigation at all because of these desperate delays that take place. Counsel meet on a particular day, and suddenly they find that the cases they are engaged in cannot be heard on that day. Then there is a postponement to some other day. Very often there is a further postponement. Counsel have to get their fees as well as refreshers, while of course the solicitors have also to be paid. The whole thing results in the spending of enormous amounts of money on legal fees that would not be necessary if the courts were conducted in the manner that they should be conducted in. The position in the Court of Appeal—this does not really enter into what we are discussing on this Bill—is a proper farce. In that court one never knows when he is going to get a decision even after a case is heard. The people concerned are simply obsessed with the old idea ingrained in their very bones that they must have the absolute maximum delay before they will give a solemn decision. The sooner, I think, that the Executive Council try to infuse into the Bench generally the idea that they are just a business organisation set up for the purpose of administering justice in a capable and at the same time expeditious way the better for the community as a whole. I hope that the Minister in getting this Bill through will not feel satisfied that he has dealt with the position that exists. From every quarter you hear complaints regarding delays in the courts, with the consequent amount of hardship, suffering and expense which those delays cause.
I only want to say that I agree with all that the last three Senators have said. I am not a lawyer and I do not know, but as far as I can judge there seems to be a unanimous opinion that the method with regard to the courts which has been adopted—a method over which we spent a lot of time with a former Minister—has absolutely broken down. From what has been said there seems to have been a complete stoppage as regards the hearing of cases in the courts. At any time, the law is a great burden to the people and not an advantage to them. As a judge once said: "it is a misfortune to lose a case, but it is disastrous to win it," which shows that anyone who goes to law and who could possibly avoid it is a sort of a lunatic.
There is nothing in the Bill which does away with the independence of the Judiciary. There is nothing in the Bill which put the Dáil or the Seanad or Ministers in control of the judges—nothing of the kind. But certain circumstances occur, one being the illness of judges. In the case of illness, you must either have a permanent judge doing nothing ready to take the position of a judge who becomes ill, or you must appoint a temporary person in his place for the duration of that illness. The other case is that a de-rating commission, a commision of very great importance, has been set up, and it was considered to be right that over that commission there should be a person whose judicial qualities had been completely proved. I am not going to enter into what Senator O'Farrell said about delays in the courts. I hardly think that arises on this Bill. The Senator attacked the Supreme Court, but I venture to think that we have a very able Supreme Court indeed. On the general question as to the number of judges, that does not arise here. If Senators flung back their memories just a few days they would be aware of the fact that a Joint Committee of the Dáil and Seanad has been set up to investigate these very questions: the number of judges, how to fill temporary vacancies when they occur, the method of hearing appeals and so on. All these matters will come before the Joint Committee which is set up. This Bill does not purport to be a permanent measure. It is a temporary measure introduced to tide us over such time as must elapse before the Joint Committee of the Dáil and Seanad has made its recommendations and before those recommendations have been embodied in law.
Tá
- John Bagwell.
- Sir Edward Bellingham.
- Sir Edward Coey Bigger.
- Samuel L. Brown, K.C.
- Miss Kathleen Browne.
- R.A. Butler.
- Alfred Byrne.
- Mrs. Costello.
- The Countess of Desart.
- James Dillon.
- James G. Douglas.
- Michael Fanning.
- Thomas Farren.
- Thomas Foran.
- Dr. O. St. J. Gogarty.
- The Earl of Granard.
- Henry S. Guinness.
- Major-General Sir William Hickie.
- Right Hon. Andrew Jameson.
- Thomas Johnson.
- Patrick W. Kenny.
- Thomas Linehan.
- The McGillycuddy of the Reeks.
- General Sir Bryan Mahon.
- Seán Milroy.
- James Moran.
- Sir Walter Nugent.
- Joseph O'Connor.
- John T. O'Farrell.
- M.F. O'Hanlon.
- L. O'Neill.
- Bernard O'Rourke.
- James J. Parkinson.
- Siobhán Bean an Phaoraigh.
- Thomas Toal.
- Richard Wilson.
Níl
- Michael Comyn, K.C.
- J.C. Dowdall.
- Colonel Moore.
- Joseph O'Doherty.
- Séumas Robinson.