Vol. 14 No. 20
I suggest that the Seanad should take the Fifth Stage of this Bill to-day. It is most important that it should be passed before the House rises for the Summer Recess. There are numbers of charities and institutions which are now without trustees. The Bill was introduced in this House in order to expedite its passing and I suggest that the last stage should be taken to-day.
Ordered accordingly.
Before this Bill leaves the Seanad finally I want to add to the arguments I have already addressed to the House, and which the House has not accepted, the further argument that, in my opinion, there are two clauses in the Bill which are a violation of the Constitution of the Free State. Section 4 (2) states:
Where the High Court has power under the said Section 25 as extended by this section to make an order appointing a new trustee or new trustees the High Court may, in lieu of appointing a new trustee or new trustees, make an order vesting the power of appointing or nominating or of consenting to or approving of the appointment of new trustees (as the case may require) in the holder for the time being of a specified office by virtue of and during his tenure of such office in the place of the holder of the office the cesser of which occasioned such appointment.
I had an amendment to the effect that the person in whom the appointment of new trustees should be vested should be the holder of a judicial office. The Seanad, in its wisdom, rejected that amendment.
I am entitled, while this Bill is receiving its final consideration, to bring forward this reason why it should not pass: that it purports to give judicial power to a person who may not be a judicial officer, and that as such it is contrary to the Constitution. Members of the Seanad must be aware, from the discussions on the Committee Stage of the Bill, that the appointment of a new trustee by a judge is a judicial act. There has to be, as I pointed out, a consent to act and an affidavit as to the fitness of the trustee. There has to be a judicial determination by the judge that the trustee proposed to be appointed has no personal interest adverse to the interest which he would have as trustee. There has to be a judicial determination and an order. Therefore, I submit to the House that it is obvious to every reasonable man and woman that the act of a person who appoints a new trustee of an instrument is a judicial act. I wish to limit the generality of that statement. I limit it in this way, that the person who creates the trust, the man who owns the money, can do whatever he likes with his own money. He can nominate a person to be a trustee. That is not a judicial act on his part, because he has absolute dominion over the fund. He can nominate the person who is to appoint the new trustee, but my contention is that where there is no trustee of an instrument, and where the court, of its own power, comes in and appoints a new trustee or nominates a person to appoint a new trustee of funds that do not belong to the person who is appointing the trustee, that that is a judicial act. There is a regular order made, and there is regular evidence before the court. If it is a judicial act under the Constitution it can be done only by a judge.
This new Trustee Act, which is to be passed so quickly through this House and which is so urgently needed, an Act which I hope will not be passed without amendment so as to make it conform to the Constitution of this country, purports to give to the judges the power, not to appoint new trustees, but power to nominate a person, who need not be a judicial person, to exercise judicial functions in the appointment of trustees of an instrument in which he has no personal interest.
I do not wish to occupy the time of the Seanad further than to make it as clear as I possibly can that in my opinion—it is only an individual opinion, and Senators need not accept it unless the reasoning which I have given satisfies them, and whether it satisfies them or not they need not accept it—a Bill like this should not be allowed to pass without making it perfectly clear that it has this vital defect. Perhaps one of the effects of the speeches made on the Bill will be that it will receive close consideration in the Dáil, and that those responsible for the Bill may find it expedient to reconsider these two clauses. Perhaps I may have convinced them that these clauses are wrong. I understand that Senator Brown is bringing forward this as a Private Member's Bill because there was no Government time for it. We got the impression—I do not know whether the Senator wished to give that impression—that this was a Government measure. Whether it is a Government measure or a Private Member's measure, I think it is desirable that it should conform to constitutional principles.
I agree with my learned friend that we ought not in any way to violate the Constitution, but I differ with him most respectfully in thinking that this Bill in any way violates the Constitution. He says that if the court appoints a person to nominate a trustee, the person nominating the trustee will himself be a judicial person, and that his act will be a judicial act. With great respect that is not so. He is no more a judicial person than the man in the street. A judge who himself appoints a trustee is doing a judicial act, because he is a judge, but if he has the power to nominate another person who is not a judicial person to appoint a trustee, then, that person is not doing a judicial act, and there is no violation of the Constitution.
Whether it is a judicial act or not depends on who does it?
No.
