Courts of Justice and Court Officers (Superannuation) Bill, 1961—Report and Final Stages.

Mr. O'Quigley

I move the following recommendation:—

In page 8, between lines 6 and 7, to insert the following:—

"Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the regulation is passed by either House within the next 21 days in which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under the regulation."

I do not exaggerate when I say I was pretty alarmed at the notion that regulations would be made by the Minister for Finance under this Bill, without their being laid before each House of the Oireachtas. I want, first of all, to disabuse the Minister's mind of any idea that this Bill is in any way comparable in its application with the Civil Service (Superannuation) Act. There is all the difference in the world between people who hold office at the will and pleasure of the Government, such as civil servants, and people who are established under the Constitution to hold office completely independently of the Government and who can be displaced and removed only under the most strict conditions laid down in the Constitution.

Article 35 of the Constitution provides:

All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

The intention of this recommendation is to provide that the judges will not in any way be subject to the Minister for Finance and that if regulations have to be made they shall be made by the Minister for Finance and thereafter appear before Parliament, so that Parliament can decide whether or not they should be made. The fundamental principle is that the judges in relation to their superannuation or in relation to any other matter shall not be subject to the Minister for Finance. That is the main purpose of the recommendation.

In Section 6 of the Bill, we find that the Minister for Finance may make regulations relating to whether or not judges of the Supreme Court, the High Court and the Circuit Court can avail themselves of the provisions of the Bill. He can make regulations with regard to notification by a person as to whether or not he wishes to avail of the provisions. He may also make regulations as to whether or not a judge is of sound health. Those powers should not be vested in any Minister of State over any judge who is supposed to be independent of the Executive. If such power is necessary, it should be by regulation to be made by the Minister and reviewable by the Houses of the Oireachtas.

Section 7 runs for nearly three pages of the Bill and deals with the allocation of pensions for the future. That matter is all to be dealt with by regulation, so that the whole of the superannuation code relating to the allocation of pensions by judges will be dealt with by regulation to be made only by the Minister for Finance. That is undesirable and it is something with which this House most certainly cannot agree.

In that connection, I would point out that without exception every superannuation scheme made under the authority of Parliament is laid before each House of the Oireachtas. Every amendment to every such superannuation scheme is laid before each House. This is going altogether too far and I am sure the Minister will agree that it would be claiming too much for a Minister of State—I do not say this in relation to any particular Minister —to say he should be given very far-reaching powers which he is supposed to exercise by regulation.

I believe the necessity for the recommendation is so obvious as not to require me to say anything further on it I very genuinely hope the Minister will accept it. I trust I was not unduly lengthy in what I have said, but I believe the recommendation is so clearly necessary that the Minister will in fact accept it.

Professor Stanford

I want to say a word in support of what has been said by Senator O'Quigley. The principle he has laid down that the judiciary should be as independent as possible is of supreme importance, and if then they are to be subject to various controls, it is most desirable that that control should be vested in Parliament in the sense that the whole country should be able to make up their minds, through their representatives, on all matters of this kind. There is, of course, the grave danger—not under the present Minister but it is an ultimate danger—that some Minister might put pressure upon the judges, and in unfavourable circumstances a clause of this kind might be used in a most deleterious way. Senator O'Quigley has put forward a very important point and I hope the Minister will give it the fullest consideration.

Minister for Justice (Mr. Traynor)

The fears of the Senators are entirely groundless. Senator O'Quigley knows just as well as I do that these regulations have been operating in respect of the Civil Service scheme, of which this Bill is practically a duplicate, and that regulations do not in any sense affect the tenure of office of the judges, or in any way affect their independence. I have examined the terms of the recommendation very carefully and I cannot accept it. I have gone into this question pretty carefully and I am satisfied that the regulations, which will be purely mechanical, will not in any way affect, as I say, the judge's tenure of office or his independence. They will operate merely in that mechanical fashion such as, for instance, the appointment of a medical officer to decide whether he should or should not grant a certificate to an individual who appears before him to seek that sort of certificate.

The furthest I can go is to undertake to submit these regulations to the representatives of the various groups affected. For instance, in the case of the judges, I would undertake to submit the suggested regulations to, say, the Chief Justice in the case of the judges or the Principal District Justice in the case of the district justices and have their views. I would not be prepared to accept this recommendation and to do something in this Bill that has not been done in other Bills corresponding to it. I am satisfied in my own mind, and, as I say, I have gone into this question pretty carefully since we had our discussion. There is no ground for the fears which have been expressed by Senator O'Quigley in particular.

Professor Hayes

The Minister's line is a very familiar one—that this is mechanical and that nothing would be done under these regulations to which anybody could take exception. The Minister goes further to meet the case which Senator O'Quigley makes and which Senator Stanford supported by saying that he would submit the regulations to the judges or to other interested parties but that is merely saying that he will consult them. What is being asked here is quite simple. It does not mean that this matter becomes public. It simply means that, when these regulations are made, a copy will be placed in the Library and any member of the Oireachtas who wants to read them can do so.

That is not a very great demand. There is a curious objection to doing this kind of thing. I do not know what it is. There is the firm belief that the Minister and officials generally are of great integrity. I agree. Senator O'Quigley's recommendation does not cast any reflection on anybody. If it were agreed to, it would not hurt anybody. It would make people feel more comfortable about a matter which is important. There is no analogy between judges and civil servants. Even if people are a little too pernickety or too careful about the position of the judges, that is the way they ought to be. Everybody ought to be in that position.

The recommendation ought to be agreed to. If it were inserted it would not hurt anybody. It would not delay the passage of the Bill if the Minister agreed to it. He could bring it into the Dáil and the Bill would be law tomorrow morning. I do not see why he should not do it. It does not give the Oireachtas any more powers. I presume one could discover by Parliamentary Question what the regulations were but I doubt if that power would ever be invoked. The recommendation gives power to see what the regulations are like. If this were inserted in the Bill, it would be a safeguard and it would be a good idea as it would mark the distinction between the civil servant who holds office at the will and pleasure of the Government and the judge who has quite a different tenure of office.

I do not think that the Minister would be at any loss by accepting the recommendation. I think it would be very desirable. I should like to appeal to him to waive his objection and accept the recommendation. If he accepts it, it cannot do any harm to anybody. It cannot be a precedent for a superannuation Bill. It is a desirable recommendation and it should be inserted.

Mr. Murphy

I agree in the main with what has been said by Senator Hayes. The Minister did not make the distinction that Senator O'Quigley was making in regard to the difference between civil servants and judges. It is no answer to the argument to say that all that is being provided for in this Bill in regard to superannuation or the making of regulations is similar to that which exists in regard to civil servants.

Civil servants are servants of the Government. We are dealing with judges who are not servants of the Government, as such. I think it is very desirable that the regulations should be laid upon the Table of the Oireachtas and, furthermore, as is provided for in the recommendation, that they can be annulled by resolution of either House. The Minister has come some way towards meeting the views put forward by agreeing to undertake to submit the regulations, before they are made, to the representatives of the people concerned.

What happens if the regulations are not suitable in the view of the people concerned and what happens if the people concerned think that the regulations bring some undue pressure on them? Apparently, there is no way they can make known their views and there is no appeal they can make, Surely the proper course is that provided in the recommendation that the regulations shall be laid before the Houses of the Oireachtas and be the subject of debate and can be annulled if that is the view of Parliament?

I hope the Minister will reconsider this matter. None of us doubts the Minister's integrity or the integrity of any possible successor of the Minister. As Senator Hayes said, we should be pernickety in regard to judges. Because of that, it is a good recommendation.

Mr. Burke

I have very little to say except to make this comment. I do not think the recommendation will in any way restrict the Executive. If the Minister had said that it would interfere with the administration and make difficult the executive functions of Government, I think there would be some case. There is the underlying assumption that civil servants for whom we all have the highest respect will not do anything wrong but that, perhaps, Deputies and Senators might, if the regulations were put before them. It would be much safer for democracy if the assumption were that Deputies and Senators were, just as civil servants, above suspicion, like Caesar's wife.

There is the assumption that in this country we have a Christian tradition and that our laws will be administered properly. That is all right but we ought to have good laws. Somebody recently remarked that the Romans had good laws and savage customs. We ought to have good laws and Christian customs. There is no reason why we, having Christian customs, should not have good laws. The Minister ought to concede the point which has been so well put by Senator O'Quigley and other Senators.

Mr. Traynor

The recommendation goes further——

An Leas-Chathaoirleach

I take it there is no objection to the Minister speaking twice?

Professor Hayes

There is no objection.

Mr. Traynor

In the recommendation there is a suggestion that the regulations can be annulled, if necessary. I want to make this point clear, that the terms of this Bill were in the hands of the judiciary for a considerable period and they had the right to examine the draft Bill and to make whatever suggestions they wished to make, and they did make suggestions. Despite the period of time during which the Bill was in their hands, no reference was made good, bad or indifferent, to the suggestion now being made. We discussed it at length in the Dáil and Deputy Sweetman, who might perhaps be described as the architect of the Civil Service scheme, discussed the Bill at length and this particular point was not raised. I believe the reason was that there was no necessity to raise it. There seems to be a suspicion running through the discussion that something sinister or something like that——

Mr. O'Quigley

No.

Mr. Traynor

——will arise from these regulations. I think I can allay the fears of the House in that respect. As I said, the regulations, which will not be very numerous, will be purely technical; they will merely arrange that two doctors shall be made available to an applicant rather than one, and other matters of that kind of which I cannot just think at the moment. As far as I am concerned, this Bill is one of a number of Bills of the same kind and I am not prepared to accept the recommendation, for, if I accept it, I am pretty certain I would also have to amend the other schemes which operate similarly to this. I am not prepared to do that.

I have given an undertaking which goes very far, and for which I am not sure there is a precedent, of submitting the regulations to the appropriate heads of the sections, such as, say, the Chief Justice in the case of the higher judiciary, and the Principal Justice in the case of justices. If they see anything wrong, or anything which is likely to operate against their best interests, they will have an opportunity to make representations to the Minister for Justice and, in turn, the Minister for Justice can make representations to the Minister for Finance. I am quite certain that these people are as understanding as any member of this House, or the other House, and they would very quickly realise the necessity to meet the requirements, if they should be met. From that point of view, I think it is unreasonable to ask me to accept this recommendation without also going into the question of amending other Acts which, as I said, I am not prepared to do.

Professor Quinlan

I should like to appeal to the Minister to accept this recommendation. The fact that the judiciary have not raised the point, and that it has not been raised in the other House, is no excuse and is no reason why a valid point raised here should not be considered on its merits. Probably the reason it has not been raised is the fact that due to the rigid Party system which we have had at all times, the laying of Orders on the Table of the House is almost valueless. We hope we may have a little more fluidity between the Parties and that members will be prepared to cross the Party line where only details of administration are concerned. I appeal to the Minister to accept this very reasonable recommendation.

Professor Hayes

In regard to the point made by the Minister that this matter was not raised in the other House, I have always set my face here against putting down amendments put down by the Opposition in the other House. In the same way, we should be at liberty to suggest points which were not suggested in the other House. I do not accept the argument that just because certain people in the other House did not think of something, we have no right, and it is not advisable for us, to do some thinking on our own.

Tomás Ó Maoláin

Nobody said you had no right.

Mr. O'Quigley

The very reason for our existence in this House is to do the kind of thing they do not do in the other House. The fact that this was not raised by the judges is perhaps due to two causes, one, that the judges did not notice it any more than did those in the Dáil, and two, that the judges did notice it but, as a matter of delicacy, did not raise it with the Minister for Justice. I do not exclude the second point as being a reason why it was not raised with the Minister.

I do not want to say any more on the recommendation than this. Before we interrupted business we were dealing with the Industrial Research and Standards Bill, in which, in Section 35, subsection (8), there is a provision that every superannuation scheme shall be laid before each House of the Oireachtas. The Minister says that this was not done in the Civil Service scheme. The whole purpose of the recommendation is to emphasise the difference between the judiciary and the Civil Service. That is the very pith of the recommendation. Civil servants hold office at the will and pleasure of the Minister for Finance; their conditions of service are controlled by the Minister for Finance; but in relation to the judiciary, it is the Constitution which is the determining authority. It is absolutely imperative that superannuation regulations should not rest with the Minister but should require the full approval of both Houses of the Oireachtas.

An Leas-Chathaoirleach

I take it the Senator is pressing the recommendation?

Mr. O'Quigley

The Chair has interpreted my tone correctly.

Recommendation put.

The Seanad divided: Tá: 18; Níl: 22.

Tá

Barry, Anthony.
Burke, Denis.
Carton, Victor.
Connor, Patrick.
Crowe, Patrick.
Crowley, Patrick.
Davidson, Mary F.
Donegan, Patrick.
Hayes, Michael.
L'Estrange, Gerald.
Murphy, Dominick F.
O'Donovan, John.
O'Keeffe, James J.
O'Quigley, John B.
Quinlan, Patrick M.
Sheehy Skeffington, Owen L.
Stanford, William B.
Tunney, James.

Níl

Ahern, Liam.
Brennan, John J.
Carter, Frank.
Cole, John C.
Colley, Harry.
Connolly O'Brien, Nora.
Crowley, Tadhg.
Dillon, Gerard B.
Dowdall, Jane.
Fitzsimons, Patrick.
Hayes, Seán.
Lahiffe, Robert.
O Ciosáin, Eamon.
O Donnabháin, Seán.
O'Dwyer, Martin.
O Maoláin, Tomás.
O'Reilly, Patrick.
O Siochfhradha, Pádraig.
O'Sullivan, Ted.
Ruane, Thomas.
Ryan, Eoin.
Walsh, Louis.

Tellers:—Tá: Senators Donegan and O'Quigley; Níl: Senators Carter and Ó Donnabháin.

Recommendation declared lost.

Bill received for final consideration.

Question proposed: "That the Bill be returned to the Dáil."

Dr. O'Donovan

I am one of those people in this House who have a conviction about these matters. I do not know what alternative arrangements will have to be made about matters like the superannuation of judges but they cannot be subordinate to the Executive under the Constitution. I am not saying that any member of the present Executive or any other executive has ever done anything wrong. I am just saying what the correct interpretation of the Constitution is, in my opinion. I have no doubt that for the proper interpretation of the Constitution, my opinion is correct in this matter.

It is not that we are afraid of anything at the moment or any period we can see, but under our Constitution there are three units, the executive, the judiciary and the legislature. Each of them must be independent of the other. They must be so independent that you cannot have people like the judges arguing or discussing with the civil servants of the Executive.

This business in Section 6 that a person may undergo medical examination under the regulation is not correct at all. Let the House not misunderstand me. There could be a deal done on this kind of thing. I am not suggesting that anybody present can do it but it would be quite possible to do a deal on it. It could be said that if you agree to be examined, it would all be fixed up. All that kind of thing is possible. I think the day is approaching in this country when there will have to be complete segregation of the arrangements for the payment to people attached to the Executive of allowances and pensions and the members of the legislature, people attached to the legislature and the members of the judiciary and the people attached to the judiciary. That is my idea of what this Bill does not comply with.

Mr. Ryan

I would suggest that Senator O'Donovan take proceedings in connection with this Bill when he will be as popular with the judiciary as he now is with the members of the Oireachtas.

Mr. Carter

Have his cake and eat it, so to speak.

Mr. O'Quigley

We now have a position where we have enacted a piece of legislation which I would have amended further on Report Stage but Standing Orders did not permit me. I am going to read part of Section 6 and part of Section 7 and I defy the Minister for Justice or any member of the judiciary to say that it means anything. Indeed, it just does not mean anything. In relation to judges' superannuation, we cannot amend the Bill in any way. I now discover that we have groups of English words which do not mean anything. I do not know what the Minister for Justice is going to do about it. It might well be that Senator Ryan, who is so interested in taking proceedings, might get instructions on this from a judge of the High Court and ask him how to construe what I am about to read.

According to subsection (1) of Section 6, "the Minister may, after consultation with the Minister for Justice, make regulations for the purposes of Sections 3 and 5 of this Act." That is an impeccable piece of drafting. Subsection (2) of Section 6 is as follows:

The regulations made under this section may, in particular, make provision with respect to all or any of the following matters:

(a) notification by a person of his wish to adopt the provisions of section 2 or section 4, as the case may be, of this Act may be lodged not later than a specified date.

What does that mean? If you were to call to your aid the professors of a university who know something about language, they would tell the House that that does not mean anything. It has not been translated into Irish yet. I do not know how the Translation Staff will manage that one. Paragraph (b) of subsection (2) of Section 6 says:

a person shall not be entitled to adopt the provisions of section 2 or 4, as the case may be, of this Act unless the Minister decides that he is of sound health.

Would the Minister tell us what that means? It means nothing. Paragraph (c) of subsection (2) of the same section is as follows:

where a person is required to undergo medical examination under the regulations he may be required to pay such fee as the Minister may determine in respect of the examination.

I do not know what that means. I think this is a most disgraceful piece of legislation. This House could not be allowed even to make an amendment. This is what comes of having too close an affinity with the Civil Service Regulation Act. I find there is a great correspondence—indeed, too close a correspondence. In Section 7 (2) (b), we find the following:

The regulations under this subsection may, in particular, make provision with respect to all or any of the following matters:

(i) notification by a person of the person's wish to make a surrender under this section may be lodged not later than a specified time before the date of retirement,

That does not mean anything—it is gibberish.

Section 7 (2) (b) (ii) states:

a person shall not be entitled to make a surrender under this section unless the Minister decides that the person is of sound health,

How is the Minister going to make regulations under these provisions? The Minister will want to make some kind of inquiry as to how this kind of thing passed through the Draftsman's office and his own office. The Taoiseach described the report of the Vocational Education Committee as a slovenly document. I return that compliment on this particular Bill.

Mr. Ryan

It is a terrible reflection on the Opposition in the Dáil.

Mr. O'Quigley

That may be, but it emphasises most clearly that when it comes to giving a hasty passage to legislation of this kind, one should say "No".

Tomás Ó Maoláin

Could we ever induce Senator O'Quigley to become chief draftsman?

Mr. O'Quigley

No. I would never yield my place in Oireachtas Éireann for that kind of thing—not for any money.

An Cathaoirleach

Senator O'Quigley on the Bill.

Mr. O'Quigley

If these interruptions are made, I must, in courtesy, reply to them. How does the Minister propose to implement the provision of the Bill in Section 7 (2) (b) (iii):

requirement by the Minister of production by a person wishing to make a surrender under this section of any proofs which the Minister may consider necessary (including, in particular, production of a statutory declaration that the proposed grantee (not being the wife of the person) is, in relation to the person, a dependant).

I could go on with that kind of thing to the mortification of the Minister who must accept responsibility for this slovenliness although he is not responsible for it at all. I do not want to say any more, lest it be an embarrassment for one for whom I have much respect. I hope the Minister will say to whoever is responsible for this that this is a Bill which cannot be implemented and I suggest he had better repeal it and re-enact it.

Question put and agreed to.

Seanad Éireann díospóireacht - Wednesday, 14 Jun 1961