Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Tuesday, 20 Apr 1943

Vol. 27 No. 21

Solicitors Bill, 1943—Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

The purpose of this Bill is to clarify the position of the Chief State Solicitor. It was assumed up to recently that he was exempt from paying the annual certification duty, but, when an action was won by the Local Government Department against the Clare County Council, the Taxing Master of the High Court ruled that the Chief State Solicitor was not exempt and, consequently, he was not entitled to get his costs. We do not propose to interfere with the decision given there; in other words, the costs against the Clare County Council will not be claimed. But we want to make the position clear.

It was always understood in the past that the Chief State Solicitor was not liable for this stamp duty. In the British days certain solicitors, amongst them the Chief Crown Solicitor, were exempt. I think the Chief Crown Solicitor was also solicitor to another Department and it was as solicitor to the other Department that he was exempt. From the establishment of this State the Chief State Solicitor never paid this duty. This Bill proposes to set that matter right, with retrospective effect, and it applies also in the case of every other solicitor employed whole-time by the State, 20 in all.

In the other House Deputy Costello objected to the Bill on the ground that the protection given to a State servant was not being extended to outside solicitors. There was one case in particular in which an outside solicitor had not been paid costs in a habeas corpus action which he won against the State; he was not paid on the ground that he had not paid the annual fee for certification. There was some confusion in regard to that case. I thought I was aware of the case to which the Deputy referred and I said I believed that the solicitor had been paid. Deputy Costello was quite certain that he had not been paid. I got confirmation later of what I had stated, but it now appears that the Deputy and I were talking about two different cases in which the same solicitor was involved. So far as that matter is concerned, I am taking advantage of being before the Seanad now to make my position clear. In perfectly good faith I did say that, in the case Deputy Costello was referring to, the fees were paid, but there were really two cases, in both of which the same solicitor was involved. The solicitor himself was interned. It was a habeas corpus case and I assumed that that was the case to which Deputy Costello was referring. It now appears the case he had in mind was one where a man named Burke was the subject of the habeas corpus action. In that case the costs were not paid.

Because the solicitor was not registered?

Yes. Deputy Costello's point was that it was not fair for the State to claim exemption in one case when they insisted that outside solicitors should pay. Legally, he was quite right, but there are other considerations. The State Solicitor thought he was exempt; the other man knew perfectly well he was not. Every solicitor has an obligation to pay this fee. I did say that the costs had been paid in the particular case to which I thought Deputy Costello was referring. The Minister for Finance has agreed in this particular case, in view of the attitude that I took up in the Dáil, that the costs should now be paid, but he is not admitting that this solicitor is legally entitled to payment, because he failed to do what every solicitor knows he should do—that is, to pay the certification fee. The payment made will be of a purely ex gratia nature.

In the belief that the solicitor had been paid I assured Deputy Costello that the case had been settled and I got all stages of the Bill in the Dáil. I was quite unaware at the time that we had two different cases in mind. I am anxious to have that on record in order to make my position clear and in order to show that I did not secure the passage of the Bill in the other House on a false statement. We are not interfering with the costs that we have lost in the case of the Clare County Council, but there may be other cases pending, and for that reason we have to make the provisions of the Bill retrospective. The Bill is an urgent one and, if the Seanad has no objection, I should like all the stages to be taken to-day.

I have not got the benefit of legal knowledge; I have not been able to consult a solicitor, but there are one or two comments that I should like to make in relation to this measure. I was aware of the case to which the Minister referred, and I am rather glad he decided to take the action that he has taken here. The attitude he has adopted is a wise one, because some attention was drawn to the matter, and it does get over one point raised by Deputy Costello. What is not quite clear to me is this: Is this the way to deal with a matter of that kind? The Minister has been fortunate, or unfortunate, in bringing in quite a number of small Bills recently to put right what was believed by a number of persons to be the law. In this case "It is hereby declared and enacted that it is not and never was obligatory..." That means that a certain decision was a wrong one and it seems to me it is a bad way to word a Bill of this kind. It would be better to make a decision now, to make it retrospective, and indemnify anybody who may be concerned. I dare say that is the intention, but, to the ordinary layman reading it, it looks as if this was simply for the purpose of saying that a particular legal decision was wrong. We may have cases where legal decisions are given which declare the law to be completely contrary to what most of us thought it to be, even to what State officials thought it to be. If that occurs, the law may be changed, but it should not be changed by saying that a particular judge was wrong and that "it was not so and never was so".

There is another point that I am not quite clear about, and that some other people are not quite clear about, and it would be well if the Minister could deal with it. I am not a lawyer, and I have only glanced through the 1898 Act, but it seems to me that the main object of obtaining this certificate is to remain on the register, and it is the business of the registrar to issue a certificate, when the fee is paid, to the effect that a particular solicitor is on the register. I can quite see why a solicitor in the employment of the State should not pay the fee—it is robbing Peter to pay Paul—but it is not clear to me why he should not be on the register. It would be convenient for any of us turning up the register if solicitors employed by the State would remain on the register. Looking at the Bill, and reading (a) and (b), it seems to me they will no longer be obliged to be on the register, because they will not have a certificate. It may be that I have read the Act wrongly, but this might be a matter of some importance. I can quite see why they should not pay a fee, but, seeing that they could, on application to the Chief Justice, be removed from the register, it seems to me that State solicitors should continue to be obliged to be on the register.

I am not sure that what I have in mind could be done under this Bill. If it can, I should like to move an amendment on Committee Stage to ensure that every practising solicitor should take out a fidelity bond so as to guarantee the moneys entrusted to him by his clients.


That matter does not arise on this Bill.

I suggest that the Minister should bring in a comprehensive Bill, covering that and other matters.

That is under consideration.

The Minister should bring in a Bill by which solicitors, auctioneers, stockbrokers, cattle salesmen, and other persons holding money of the public would be obliged to take out a fidelity bond to guarantee the safety of the money thus entrusted to them. The Minister should consider that. We are all happy to say that——


The Senator seems to propose to make a speech on that hypothetical question. He had better not discuss that matter on this Bill.

The Minister did not clarify my mind on certain matters. I understand that through, if I may say so, some ineptitude in the Department, the Chief State Solicitor thought he was not bound to pay this fee. A question arose in regard to costs in a case in which Clare County Council were involved. The Minister says that it is not proposed that this Bill should be used for recovering those costs. I I can follow all that. But he refers to about 20 other officials who are also being covered by this Bill. I suppose these men are solicitors in the offices of the Attorney-General and the Chief State Solicitor. I assume that there was no illusion as to whether or not they were bound to pay this fee. This opportunity is now being taken to exempt from liability to payment some 20 persons who, all along, believed they had to pay the fee and, presumably, paid it. The Minister did not make any case in respect of these officials. There may be a good case for this course of action but the Minister did not make it.

It is proposed to remedy the position of errancy with regard to the Chief State Solicitor revealed in the case of the Clare County Council. There were two ways of doing that. One was to say he did not need to pay and the other to pay. The Minister did not make it clear why this cumbersome method of legislation was chosen rather than the method of payment, which would immediately put him right in any cases likely to come up. I suppose it has always been known and accepted as perfectly right that some 20 other State officials should pay this fee. Why is it now proposed that they should not pay? It is a sort of addition to their salary. With regard to the costs which should come from the Clare County Council, I presume that they have been lost to the State and that somebody else has them through this ineptitude in not paying the fee. I suppose that the failure of this money, which the State was due to receive, to reach the Exchequer will be reported upon by the Comptroller and Auditor-General and will be considered by the Public Accounts Committee. Is that the normal course?

On the point raised by Senator Fitzgerald as to why we are not proposing to pay——

In regard to the Chief State Solicitor.

That would make the matter right only for the future. There are some pending cases—we do not know how many — in which the same objection might be put forward. As regards payment by the other solicitors, I do not think that 20 of them are involved. The number would be about 12. It is the State which pays the stamp fee for them. It is simply a matter of taking the money out of one pocket and putting it into another, and it was thought better to deal with the matter in this way. A question will arise regarding a payment of £1 fee to the Incorporated Law Society. That fee of £1 was payable in each case. That is a matter which can be arranged between the Department of Finance and the Incorporated Law Society. As it was the State which was paying these fees, it was thought better to exempt all whole-time solicitors employed by the State from liability to this stamp duty. It will principally affect solicitors in the Land Commission, Post Office and the offices of the Attorney-General and Chief State Solicitor.

As regards the point of these solicitors being kept on the register, during the British régime seven of these solicitors did not pay these fees and were not on the roll. So far as the wording of that section of the Act went, it would have been possible to bring in somebody who was not a solicitor at all. The solicitors who were not registered included the Treasury solicitor and the solicitors for Customs, Inland Revenue, Post Office "or any other branch of Her Majesty's revenue", or the solicitor to the War Department or the solicitor to the Board of Admiralty. As the solicitors in question here do not practise outside and as they do not evade any liability to the State, as would an ordinary solicitor who failed to pay his certification fee, it is proposed in this Bill definitely to exempt them.

To exempt them entirely from registration?

They will be registered, but they will not have to pay the stamp duty. As regards the drafting of the Bill, I dare say it would have been better if it had been done in the way Senator Douglas suggests, but this was considered the best way. Why I do not know. I should have preferred the other way. Deputy Costello described the measure in the other House as an "Act to enact a legislative lie". That was rather strong. I should have preferred the drafting Senator Douglas suggests, but not much is involved in the matter.

The Minister has stated that he will not claim these costs. But, as a matter of fact, inasmuch as you state it never was the law and inasmuch as the costs were withheld by reason of its not having been the law, you are now leaving it open in the case of the State Solicitor and this solicitor who was referred to——


Is the Senator making a second speech or asking a question?

I am asking a question. Take the other solicitor. When you say, "it is not and never was," can he not come along and say: "I was denied my costs on the ground that I was not legally entitled to them because I had failed to fulfil a certain legal requirement. Here is the law stating that not only is that legal requirement not necessary now, but never at any time in the past was it necessary."

In respect of State solicitors only.

Very well then. With regard to the State Solicitor, you are really stating that the authority who refused to give him costs acted in the name of the law against the law as it was at that time and as it is now declared to have been at that time.

This is, I understand, the form very often adopted in retrospective legislation, which, of course, is rather objectionable if it could be avoided. But a decision was given by the Taxing Master on the law as it then existed and the Attorney-General is not appealing from that decision. He is letting that go, because it was the law at the time according to a court decision.

You are now saying it was not the law.

We are simply letting him get away with the fruits of it, because he got a decision, although when this Bill is passed we would be entitled to recover the costs. It is the usual practice when legislation of this kind is passed to let the people who have got a decision from the courts get away with the fruits of their victory and to legislate for future cases. That happened only the other day when we brought in the Accidental Fires Bill, as there was a case decided.

We are all agreed as to that. The point is that we do not think this does it.

The other solicitor is in a different position. This Bill only deals with solicitors permanently employed by the State. Every other solicitor who practises outside must take out his certificate; he is not being interfered with. I do not see what grievance a man can possibly have who knows that he must pay his fee. The point was brought up by Deputy Costello. He said it was not fair that we should claim retrospective exemption when the others did not get it. But the point is that it was believed, apparently, by Deputy Costello all the time that he was Attorney-General that the State Solicitor was exempt, because he never paid his certification fee from the time the State was set up. If it had not been believed that that was the case, it would have been made clear, and some similar Bill to this would have been passed long ago. In the case of outside solicitors, everyone knows that they are compelled to pay this fee before a certain date, and there really is no analogy so far as I can see.

On the question of the drafting. Supposing, when this Bill is passed, I get up and make a speech or write in a newspaper that a given Taxing Master, whose name I give, was ignorant of the law, and actually brought in a finding refusing a solicitor his costs, when, as a matter of fact, by law he was bound to give them. If he took an action against me, and I get up and produce this Bill and say: "Here it is laid down by law that what he declared to be the law never was the law, and, consequently, he made a wrong finding and proved himself ignorant of the law and unworthy to hold his job," I presume I would win the legal action.

I do not know whether I can convince Senator Fitzgerald, but the fact is that this man found the law to be in a certain position.

You state it was not.

We are saying it now.

That he was wrong.

We have done the same thing in other cases. The other Government had to do it when they found that the alternative would be that there would be any amount of cases brought that people would never have dreamt of bringing before. That is always the case when there is retrospective legislation. You have to say "is not and never was".

Surely you could put it in the form that for the purposes of this, so-and-so shall be deemed never to have been.

Surely this is a matter for Committee.

The principal point is that we have to make it certain that the Chief State Solicitor was always qualified to act. If we did not do that in this form, then we are admitting that for part of his period of office he was not qualified to act.

Is it not a fact?

And we did not know it.


It is admittedly retrospective legislation, and surely it should be drafted clearly, declaring that it is legislation giving a sort of indemnity and so on covering the past, but what you are saying is that it was the law 20 years ago when it was not.

Question put and agreed to.
Agreed to take Committee and Final Stages now.
Bill considered in Committee.
Question proposed: "That Section 1 stand part of the Bill."

The Minister and Senator Fitzgerald had a little Committee Stage of their own on the Second Stage and, as I thought it would be out of order, I did not express my dissatisfaction with the explanation of the Minister, if he really gave an explanation. It may be that he did not understand the point I made. I do not propose to go further into the question of the drafting except to say that I still think that this is not the way to deal with a case of this kind. The first Bill I remember which was like this was the old Land Bill. In that case we were dealing with a court outside the country which was claiming the right to determine certain matters. We then said that the decision of our court was the law and always was so.

Frankly, I think that was the proper way of dealing with it. But, when we are now dealing with our own courts, it seems to me the fundamental position is that Parliament passes a law and, once it has passed Parliament, we do not know what it means except so far as it is finally decided by the courts. If the courts make a decision, that is the law, and Parliament changes it as soon as it thinks fit. If it has to make it retrospective, it does not say that it was not the law, but makes the necessary amendment. However, the Bill is here now and I do not suppose it will matter a lot. I only thought it right to express my view.

A much more important point in my view is that the Minister says that it is not intended that the solicitors employed by the State shall not be on the register. The intention is that they should remain on the register, but not pay the fee. I respectfully suggest to the Minister and his advisers that there may be a flaw in that respect. I was telephoned last night by a barrister acquaintance of mine, not, I may say, Deputy Costello or any member of either House, who asked me to read carefully this Bill and the Solicitors (Ireland) Act, 1898. He thought the way in which the Bill was worded, probably unintentionally, might remove the necessity to remain on the register, that an unregistered person could act. When I read the Solicitors (Ireland) Act, just before coming into the House, I came to the conclusion that there was a genuine doubt, and that was why I asked the Minister if he was quite satisfied that this Bill did retain these people on the register. I looked up Section 6, Section 38 and Section 48, and it seems to me that it is the Registrar who issues the certificate. He issues it each year when he gets the fee. The certificate is that the person is on the register. When you read that in conjunction with Section 6, I do think there is every possibility you may find you have removed the obligation for him to remain on it. For that reason, I doubt if the Minister would be wise in putting all the stages through to-day. Obviously I cannot quote the person who rang me up. He may be quite wrong, but when I read it myself I had a doubt.

It may be better to postpone it.

We will be meeting in a fortnight or three weeks.

I understand it is urgent but if there is a doubt like that I had better get advice.

I am putting that point for what it is worth.

Does the Minister think there may be a doubt?

I am told it does not make very much difference. As a matter of fact, as I said before, under the British régime they need not have been on the register. It was not necessary. They were State solicitors, employed by the State. I do not think it is a very important point whether they are on the register or not.

I think it is. There are a great many things that cannot be argued on the basis that the British did it. I am sure the Minister would be the last person to put that forward as a legitimate argument. But surely the solicitors should not be freed from the discipline and everything involved in it.

I shall read Section 58 of the Solicitors (Ireland) Act, 1898, which may clear the point:—

This Act shall not extend to the examination, swearing, admission, or enrolment, or any rights or privileges, of any persons appointed to be solicitors to the Treasury, Customs, Inland Revenue, Post Office, or any other branch of her Majesty's Revenue, or to the solicitor to the Board of Admiralty, or to the solicitor to the War Department, and shall not affect the provisions of Section 273 of the Customs Consolidation Act, 1876, or of Section 27 of the Inland Revenue Regulation Act, 1890, as amended by Section 38 of the Finance Act, 1896.

In other words, it does not affect their enrolment. In fact, my information is that, as the law stands at present, as far as the British were concerned, they might not be solicitors at all. That is as the law stands at present, and we are not touching that. We are just providing that these particular solicitors we employ will not have to pay the certification fee. I am advised that it is quite safe to pass it.

If the Minister assures us that the point raised by Senator Douglas has no substance, I do not know whether we need fail to pass all Stages now.

As far as I am concerned, I am not acting for solicitors, I am acting purely as a member of this House. I am passing on a doubt expressed to me which, when I read the Bill, seemed to me a legitimate doubt. If the House is satisfied, I do not feel I have any particular duty in the matter, but may I just add that I believe if a simple Bill had been introduced providing that they did not have to pay fees and making it retrospective, there would not be these doubts. The doubts are largely due to the way in which it has been tackled.

On that, I have got the best advice I can get that it is quite all right and I cannot go beyond that.

In that case, I do not see any objection to giving all stages.

Let it go.

Question put and agreed to.
Section 2 and Title agreed to.
Bill reported without amendment, received for final consideration, and passed.
Ordered: That the Bill be returned to the Dáil.