Tuesday, 4 December 1923
Dáil Éireann Debate
AN CEANN COMHAIRLE: On the motion of Deputy Johnson, the Dáil resolved itself into Committee to consider amendments sent in for the Report Stage. The Dáil will therefore go into Committee on these amendments.
The age of retirement of Circuit Judges 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.”
That amendment relates to the retiring age of Circuit Judges, and it will be remembered that the President stated in Committee that it was proposed that the extension of the retiring age should be made by the Executive Council after consultation with the Chief Justice and Attorney-General. This amendment gives effect to that undertaking.
This amendment proposes to delete Section 42 in pursuance of an undertaking that there would be an amended form of declaration for all Judges. That will now be found in Amendment 14, which I will move later.
Every Circuit Judge shall receive a salary of £1,500 per annum, together with an addition or bonus thereon calculated at the rate for the time being applicable to the case of a civil servant in receipt of the like salary with the right to bonus thereon. Every Circuit Judge who resigns or otherwise for any cause vacates his office after having completed fifteen or more years' service shall be entitled for his life to a pension amounting to two-thirds of his salary at the time he resigns or vacates his office, and every Circuit Judge who vacates his office owing to age or permanent infirmity, after having completed five or more years' service and less than fifteen years' service shall be entitled to 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.”
ATTORNEY-GENERAL: I should point out that there is a slight error in the text of the amendment as printed. In the fourth line from the end, after the word “entitled,” the words “for his life” should be inserted. This amendment will give Circuit Judges in the present year a salary of £1,736. I should like to point out that this amendment provides for the contingency mentioned of the possibility of a Judge retiring unduly soon after appointment. The provision at the end of the Section covers that point.
The PRESIDENT: I was going to intervene to ask the Minister for Finance to agree to a fixed figure in this case in order to meet the case put forward by several Deputies, both here and outside, during the early stages of the discussion on this matter. This is the one instance in the Bill in which, I think, a bonus is attached to salary. I think the Minister was agreeable to have a sum fixed at £1,700, without any bonus. If there was general agreement we might get that alteration made now.
Mr. BLYTHE: Since this amendment was put in I had a further discussion on this matter with the Attorney-General, and in view of the fact that the salaries of the District Justices are of a fixed amount, and those of the High Court and Supreme Court Judges are also fixed, I think it is probably undesirable to have a salary and bonus in the case of this one particular class. In these circumstances, I am agreeable to a fixed salary of £1,700. It will cost the State something less than £1,500 with bonus. I think the additional cost will be very slight, because we will not have the cost of living bonus fall very much below its present figure—certainly not more than twenty or thirty points, for a very long time. Under those circumstances, it will involve very little extra cost.
AN CEANN COMHAIRLE: The amendment would, therefore, be to delete the figure “£1,500” and to insert £1,700, so that it would read: “Each Circuit Judge shall receive a salary of £1,700 per annum, and delete all words to the end of the sentence, and the new Section would read:—
Every Circuit Judge shall receive a salary of £1,700 per annum. Every Circuit Judge who resigns or otherwise for any cause vacates his office after having completed fifteen or more years' service shall be entitled for his life to a pension amounting to two-thirds of his salary at the time he resigns or vacates his office, and every Circuit Judge who vacates his office owing to age or permanent infirmity,  after having completed five or more years' service and less than fifteen years' service shall be entitled for his life to 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.
Mr. ALFRED BYRNE: Might I ask whether anything could be done in the case of Judges getting pensions for their lives, and who are going away, to induce them to take up their residence in Ireland, instead of taking the money out of this country entirely? I understand that arrangements are being made by some of the Judges about to retire to leave the country and reside in England, drawing their money from the State here and spending it elsewhere. Perhaps some consideration could be given to that matter.
The PRESIDENT: I think the Deputy refers to the case of Judges who do not come under the provisions of this Bill. I take it—and I think I can speak with some certainty—that it is not likely there will be anything in the nature of a trek of the Judges who are to be appointed under this Bill, and possibly if there will be a trek at all, it will be, on the part of those who left, back again into this country. As to those who left, or intend to leave, we have no control over them. They are part of a bargain we have made, and if they do not intend to remain here, I do not think any inducement we could give them would cause them to change their mind.
The PRESIDENT: Their pensions are paid, as regards a considerable portion of them, from funds of the Saorstát,  and are paid, so far as we are concerned, in accordance with an agreement. I understand the British Government has made up the difference between that and their salaries, except in a few cases. But it must be understood that their pensions are primarily charged upon the British Consolidated Fund, and, then, the British make application to us for the portion of the charge for which we are liable under the bargain made.
Major BRYAN COOPER: I would like, before we pass this amendment, to ask the Minister for Finance what the cost of this will be? Am I right in thinking it cannot be more than £1,600 a year, and may I ask how far that increased expenditure will be met by the passing of the last amendment which raised the retiring age and obviated the necessity of granting pensions to men at an early age, and, also, which provided that men who retire after three or four years of office, will not get the full pension. Will the whole cost of this additional £200 a year to the Circuit Judges not be balanced by the saving effected by the adoption of the last amendment?
Mr. BLYTHE: As a matter of fact, without taking into account the factors to which Deputy Bryan Cooper refers, it will cost less to give £1,700 as a flat rate than to give £1,500 with bonus. I cannot say what the exact amount of the difference will be, but without making any calculation, and taking into account the factors which the Deputy has mentioned, I believe it will cost less under this new provision than if the old provision were retained. I think the total amount this amendment will involve will be limited to £1,500. It adds nothing to the cost of the Judiciary as a whole.
Mr. BLYTHE: I beg to move Amendment 16, to delete in Section 46  lines 30 and 31, page 11, the words “On such terms as to payment of the deputy out of the salary of the Circuit Judge or otherwise,” and to insert in lieu thereof the words “at such remuneration.”
The reason for putting forward this amendment is this, that the Circuit Judges will work ten months in the year, as compared with the three or four months in the year worked by the County Court Judges. While it might have been all right to make the expenses of a deputy chargeable on the salary of the County Court Judge whose working year was very slender, it is thought it would be too onerous to put it on the Circuit Judge, who will have a very heavy year's work. It is in view of that, that the amendment is put forward.
(vii.) In proceedings at the suit of the State or any Minister or Government Department or any officer thereof to recover any sum not exceeding £300 due to or recoverable by or on behalf of the State, whether by way of penalty, debt, or otherwise, and notwithstanding any enactment now in force requiring such sum to be sued for in any other court.”
This amendment is put forward for the purpose of enabling small debts due to the State to be sued for in the Circuit Court. It is felt that it will be to the advantage of the State, and to the debtors of the State, if it is possible to have these debts sued for in the Circuit Court rather than in the High Court only.
This amendment proposes to delete from Section 49 a proviso dealing with the jury matters in a Circuit Court and with certain topics which are common both to the High Court and Circuit Court. It is thought preferable that they should be put in a single clause at the end of the Bill, and that is now proposed to be done by Amendment 40.
“Save as in this Act is otherwise expressly provided, an appeal shall lie from any judgment or order of the Circuit Court in civil cases to two judges of the High Court sitting in Dublin. If such two judges agree in their opinion, their decision shall be final unless they certify that their decision involves a question of law or fact of such importance as to be fit to be the subject of an appeal to the Supreme Court, in which case an appeal shall lie at the instance of any party from the decision of such two judges to the Supreme Court. If such two judges differ in their opinion, they shall affirm with costs the judgment or order appealed against, and an appeal shall lie at the instance of any party from such affirmance to the Supreme Court.”
This amendment is introduced to meet certain objections put forward by Deputy Redmond and Deputy Magennis on the subject of appeals from the Circuit Court to the High Court. In the Bill, as it stands, there was a provision that the appeal should be, in the first instance, to two Judges of the High Court, with power of further appeal, in case of their disagreement, to the same Court with a Judge of the Supreme Court of Appeal added. That form of proceeding apparently has not been found acceptable, and this amendment sets out a new proposal which, I think,  will be found more acceptable. Under this amendment, an appeal can be taken from the Circuit Court to two Judges of the High Court, and, if they agree, their decision will be final, unless they certify that there is some question of law or of importance that should be taken further. If they disagree, then the decision of the Court below is to stand, subject to the right of a further appeal to the Court of Appeal, which is to be open to either party as of right. I think this is a simple proceeding, and is a reasonable way of meeting the objections that were raised. The new Section will read as I have moved it above. I believe I can say that the amendment, in the form of this new Section, meets with the approval of the Bar.
Mr. A. BYRNE: I have not a copy of the Bill before me, but as well as I recollect this amendment deals with a Section under which two Judges, and two Judges only, shall be allowed to give a decision, a majority decision of the Court, and that the opinion of the third Judge, although he differs from the other two Judges, is not to be announced. I think this is a rather grave mistake.
Mr. BYRNE: The Attorney-General in his statement, said that the decision of the two Judges would be final. I think if the third Judge disagrees with them in their judgment, that his opinion ought also to be announced.
In Section 67, line 49, page 14, to add immediately after the word “Ireland” the following words:—“Provided that at least two members of the Committee shall be certified by the Minister for Home Affairs as possessing an adequate knowledge of the Irish language.”
This amendment gives effect to an undertaking which I gave here to Deputy O'Maille that some provision would be introduced making it necessary to have on the rule-making authority some members who would be familiar with the Irish language, and who would, consequently, be capable of making rules which would provide for its use without inconvenience and without disadvantage to the parties interested.
In Section 72, line 30, page 15, to insert immediately after the figures “1923” the following words:—“But service as a judge of the Dáil Supreme Court as defined in the Dáil Eireann Courts (Winding-Up) Act, 1923 (No. 36 of 1923) or as a Judicial Commissioner appointed under that Act, shall be deemed practice at the Bar for the purpose of this provision.”
This amendment amends the qualifications set out in Section 72 for appointments by proposing to insert that service as a Judge in the Dáil Supreme Court, as defined in the Dáil Eireann Courts (Winding-Up) Act, or as a Judicial Commissioner appointed under that Act, shall be deemed to be practice  at the Bar for the purpose of this provision. I suggest that this remedies an obvious but quite unintentional omission.
“The age of retirement of Justices of the District Court shall be 65 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 Justice to 70 years.”
This amendment gives effect to an undertaking of mine on an amendment by Deputy Major Cooper. It will be remembered that Deputy Magennis's amendment was defeated on a division. It proposed to make the normal retiring age for a District Justice 70, with power to extend to 75. It will be remembered that on Deputy Major Cooper's amendment, which he withdrew on the undertaking, I promised to consider the question of an amendment providing for a normal age of 65, with power to extend it to 70. This amendment gives effect to that promise.
 The senior of the Justices of the District Court for the time being assigned to the Police District of Dublin Metropolis shall receive a salary of £1,200 per annum, and every other of the Justices aforesaid and also the Justice for the time being assigned to a District comprising or including the City of Cork shall receive a salary of £1,100 per annum.
This is to fix the salary of District Justices. It fixes a slightly higher salary in the case of the Senior Justice in Dublin, also in the case of the other Justices in Dublin, and in the case of the Justice who will have Cork City. At present I think the salary of the Senior Police Magistrate in Dublin is £1,200 per annum. There is no doubt that the District Justices in Dublin will have very important business coming before them, in view of the extended jurisdiction which will be given to this class of judge. It is also felt that in Cork city there will be very important work coming before the District Justice and that the salary should be slightly higher. The idea would be that the very best of the District Justices should from time to time, as vacancies arose, be allotted to these cities. The salary of the other District Justices is fixed at £1,000—the present salary. It is felt that is a sufficient salary, and also that it is no less than a sufficient salary, having regard to the work they will be required to perform. The salary is not charged on the Central Fund but will be voted by the Oireachtas year by year. The reason for that is largely that the number of District Justices will not be fixed, as the number of judges will be fixed. It will give the Oireachtas annually an opportunity of saying that there are far too many District Justices and that there is no work for them. It will also give them the opportunity of saying that the Courts are congested, that there should be more District Justices, and that sufficient  appointments are not being made. It is to be remembered, of course, that in other respects the status of the District Justices is not made equal to the status of the Judges, who are appointed by the Governor-General on the advice of the Executive Council, and who can be removed only in a particular way. These particular Justices can be removed in another way. However, it is not a matter of very much importance, but it is felt that it is better that the salary should not be charged on the Central Fund, but that they should be made a matter of submission to the Oireachtas or to the Dáil year by year.
ATTORNEY-GENERAL: I might mention that the provision as to salaries was deleted from the former Section 70, and I undertook to have a word with the Minister for Finance. This amendment is the result of that word. There is one thing I want to say, and it is this: Deputy Davin asked a question, which I promised to look into, namely, as to whether District Justices, if removed from one district to another, would be provided with their expenses of removal? I am informed by the Ministry of Finance that they would.
Captain REDMOND: I must congratulate the Attorney-General on getting at the soft side of the Minister for Finance. Certainly he is in an enviable position. I must also congratulate the Minister for Finance on this amendment. As regards the unique positions of Dublin and Cork I make no complaint, but I do think that the other two principal cities of Ireland should be put in a similar position, namely, the city I represent, Waterford, and if the representative so desires, the city of Limerick.
Captain REDMOND: And Galway, too. Certainly I think that there will be equally as important work to be done by the District Justice in the City of Waterford as in the City of Cork. I therefore ask the Minister if it would not be possible to reconsider the question on that basis. As regards the wording of this amendment, I notice that it commences as follows:—“The senior of the Justices of the District Court for the time being assigned to the Police District of Dublin Metropolis shall receive...” I confess I cannot quite follow the meaning of these words. I would like to know what is meant by “senior of the Justices.”
Captain REDMOND: Does that mean that the transference is to be automatic? If appointments are to be made at the same time does that mean that one of the appointments shall rank senior to the others? I understand that that is so. I welcome this amendment. Perhaps the Attorney-General might try the other ear this time of the Minister for Finance and put in a good word for Waterford and Limerick.
Major COOPER: The Minister for Finance will now see that in giving way to the Attorney-General he has opened a very wide door for others to assert their claims besides Waterford and Limerick. I really think the whole matter needs more consideration than we are able to give it at this Stage. Take the question of travelling allowances. Is it suggested that the Magistrates in Dublin are to receive travelling allowances? Probably their travelling expenses would be sixpence per day. Why should they have £200? In Cork, I agree, there may be important duties and responsibilities. It is ridiculous to give the Dublin Magistrates £200 if they live in Dublin. I expect the Cork Magistrate will need the allowance, as, like all Corkmen, he will probably live in Dublin. By the time this Bill returns to the Dáil from the Seanad I hope the Minister will work out some sort of scheme and be able to tell us whether the travelling allowances  are to be applicable in Dublin, and whether the Justices here are entitled to them. This has created a dilemma. The Dublin Magistrates, if they do not get travelling allowances, will not be better off than the other Justices, and, in the case of those who receive £1,100 a year, will be worse off. On the other hand, if the Dublin Magistrates get the allowances they will be getting money from public funds to which they really have no just claim.
Mr. DARRELL FIGGIS: Before the Attorney-General or the Minister for Finance replies, I wish to ask, for the information of the Dáil, and not by way of criticism, if the amount allowed for travelling expenses is allowed to each Magistrate even though it might not happen to be incurred to the full amount. It might happen that the figure might be exceeded. Is it a payment made, or have the Magistrates to keep within it or to expend it, or is it made on returns furnished by them, or what is the method?
ATTORNEY-GENERAL: I remember when £200 was fixed at first, it was really a commutation sum arrived at with District Justices, then temporarily appointed. Of course, that commutation sum was really in the nature of an experiment, and was to represent actual expenditure on travelling. There is nothing in the Bill now that provides that anyone is to receive £200 or any fixed sum for travelling. It is a matter which must be vouched.
Mr. THOMAS JOHNSON: I am not quite convinced of the wisdom of the last paragraph of this amendment: “The several salaries aforesaid shall be paid out of moneys provided by the Oireachtas.” I do not think a case has been made out for distinguishing, in this respect at any rate, between the District Justices, Circuit Judges and High Court Judges. If it is undesirable that the conduct of any Judge should be reviewable by the Oireachtas, or by the Dáil, then that should apply, I think, to the District Justices just as much as to the Circuit Judges. The Minister suggests that the question of whether there are too many such Justices might be discussed. There is nothing  to prevent judgements being discussed if the salaries are to be reviewable on the Estimates. It seems to me rather to detract from the status of the District Justice in a way that is inconsistent with the intention of the plan. The District Justices are to be much more important than the old Magistrates were, and I think they should be placed in the same position regarding the source of their salaries as the other Judges.
Again, it is the suggestion of the political appointment, and I think that we should get as far away from that as we possibly can. One way to move from that idea would be to place them in the same position regarding payment out of the central fund as the Circuit Judges. I do not think the case for making the differentiation in this respect has been made.
Mr. BLYTHE: As a matter of fact, this amendment itself is, in a certain sense, a concession to meet the point of view of Deputy Johnson and others, and I do not incline at the moment to go any further than we go in the amendment. I do not think that it does at all seriously interfere with the status of the District Justices. As a matter of fact, the provision for terminating the appointment or the removal from office of a District Justice is a far more important thing than this matter of providing his salary in a certain way. I could give the reasons for the special provision in regard to removal from office, but that is not a matter dealt with under this amendment. There are to be a very large number of District Justices. There will be thirty-three of them. It may turn out, when the new code has been in operation for some time, that we will find that 25 or 26 will be sufficient. It may, on the other hand, turn out that we will have to bring in a new Bill and extend the number to 35 or 36. It will come out when we see how they can get through the amount of business they will have to do. At any rate, the number is large and it is not a number that we can fix. It is most desirable that we should not keep up a larger establishment than is necessary.
If, at any time, we find that the full number allowed by the law is not required  a suitable and reasonable opportunity will be given to Deputies to suggest that the number should not be so large. I cannot conceive that there would be any discussion on the Estimates of the judgements of District Justices. I cannot conceive that any other question would be discussed in any way that would be serious or would reflect on anything other than the number, or that any Deputy would attempt the discussion of any matter that did not properly arise, having regard to the fact that these were people charged with the administration of justice. I cannot think that cases would be brought up or that magistrates would be arraigned or that any opportunity would be taken to attack individuals. I do not see that the matter is one in which any alteration of the amendment is required in respect of this particular clause.
ATTORNEY-GENERAL: May I point out as regards the suggestion of anything political in this matter, upon which I am certainly very jealous, that the mode of appointment is the same as in the case of all other Judges, and that the mode of removal or dismissal from office takes away every shred of possibility for suggesting that there could be anything political in relation to their actions.
Mr. JOHNSON: In respect of the remarks of the Minister I think that it may be within his knowledge, if he scours his memory, that frequently magistrates' decisions have been a subject of discussion in the British House of Commons, and Judges' decisions are taboo; they cannot be discussed. That is quite possible under this, and I think that whatever we may desire in the matter the fact that magistrates' salaries are paid out of moneys provided by the Oireachtas rather makes it possible. There is no rule to the contrary, and you could not prevent Deputies raising questions as to decisions, whereas you could prevent it in the case of a Circuit Judge or of a High Court Judge.
Captain REDMOND: I think there is a great deal indeed in the question raised by Deputy Johnson, and for this  reason. Either these District Justices are judges or they are not. If they are judges, according to Article 68 of the Constitution they shall be appointed in a certain manner and they shall be remunerated in a certain manner. Up to this I think that we in these discussions have treated these District Justices as judges, and the reason is obvious. As Deputy Johnson has said, in the British House of Commons, and perhaps elsewhere, magistrates' decisions are always open to discussion and supervision and are constantly discussed, but judge's judgments never; and under Article 69 it is stated that “all judges shall be independent in the exercise of their functions and subject only to the Constitution and the law.” I certainly think that this points to the distinction which seems to be drawn here between District Justices and judges. If the Government will say that these are not judges, very good; then we will know where we are.
If they will say they are only to be a replica of the old system of Removable Magistrates, then we also know where we are, but if they are to be called judges, and not to be subject to the same regulations as are laid down in black and white in Articles 68 and 69 of the Constitution, then I say that we are in a fog about the proper character and status of these judicial servants of the State, and I think it is well, at this stage, before any matters which might lead to heated controversy or debate might arise that this question of status should be here and now determined. Before we pass this amendment, I think it would be well if the Attorney-General could assure us on this point, whether these District Justices are to be treated as judges or merely as nominated magistrates. Undoubtedly it will be within the right, and perhaps it may be the duty, of Deputies to bring forward for discussion decisions of these Justices, if they are to be treated as ordinary justices and not as judges. Therefore, I think Deputy Johnson has, I am sure in no capricious way, done a great service, and has anticipated possible events which might lead to trouble by raising this question now. In asking, as I do, for such an assurance, I feel that I am  not only asking for worthy and proper information, but also that I am doing something towards placing the Government in a position to tell us and the country whether these judges are to be judges, or whether they are merely to be Removable Magistrates.
Mr. O'CONNELL: The only argument put forward by the Minister in favour of this particular Clause relates to the question which, he says, may need to be discussed in the Dáil—that is the question as to whether or not there are sufficient Justices to deal with all the work which may have to be done, or whether the number of Justices is too many. I submit the proper Vote under which to discuss a matter of that kind would be on the salary of the Minister for Justice, and not on the District Justices Vote. In any case, certainly, the question he mentioned could be discussed on the Vote of the Ministry of Justice, and under that it might be confined to the question of whether or not sufficient arrangements had been made for the proper administration of justice, but, as Deputy Johnson rightly says, if there is to be a vote on the District Justices salary here you cannot, I respectfully submit, prevent a Deputy who wishes, no matter what we may think of the action of such a Deputy, discussing the actions of any District Justice, whose salary he is asked to vote for.
Major COOPER: One rather important constitutional point is involved in this. If the Oireachtas is asked to vote money it is bound to see that the money is properly expended, and you cannot shut out of debate the question of the competence of any one of these people for whom the money is voted. It could not be done. If, say a District Justice took some individual view of law, and his judgments were normally reversed on appeal, you would be almost bound to have that case coming up and being discussed. If he is to be removed, it is better he should be removed as a result of the fiat of the Minister of Justice, rather than as a result of a debate in the Dáil. Take such a situation as exists in the County Waterford,  where there is a violent labour dispute, and assume that a District Justice habitually gave his decision on one side or the other, Deputies representing labour, or representing the farmers, would find themselves under almost intolerable pressure from their supporters outside the Dáil to have that magistrate's conduct discussed. I do not think it is fair to place Deputies in that position. Their supporters will say “You have power to raise this under the Statute, why do you not use it?” However reluctant they may be, feeling it was wrong to have these matters discussed, they would find it very difficult to turn down their supporters. I would urge the Government to consider the danger this course exposes them to.
ATTORNEY-GENERAL: I am sure Deputy Johnson will appreciate the tribute of Deputy Redmond, but whether he will equally appreciate the mischievous suggestion that these District Justices are to be put in the position of the old Removable Magistrates, I do not know—a thoroughly mischievous suggestion, when an attempt is being made to set up a judiciary which will meet with the general acceptance of the people and have their confidence. In answer to the question being directed to or at me, referring to Articles 68 and 69 of the Constitution, it is perfectly clear that the District Justices are Judges, and that view of their office has been acted on by the Government, which has in every instance had them appointed by the process presented for the appointment of Judges in the Constitution. Further, Article 69 provided that all Judges, which includes District Justices, shall be independent in the exercise of their functions. Independent of what? Independent of everything, save the law and the Constitution. And if any Deputy should be urged to raise the question here with reference to the exercise of any Judge's functions, I should think, though I should not venture to anticipate the decision or ruling that might be given, it would rest with the Ceann Comhairle to apply this provision of the Constitution in his decision as to whether such a discussion should be permitted. It seems perfectly clear the Article applies  to all judges, and they are declared to be independent in the exercise of their functions.
Mr. JOHNSON: It seems to me that the statement made by the Attorney-General strengthens the case for placing the salaries of the District Justices upon the Central Fund. I am glad to have the assurance of the Attorney-General that the District Justices shall be classed as judges, as defined by the Constitution, and that they shall be independent, subject only to the Constitution and the law. Nevertheless, if we are going to be free to discuss the salaries, we can, even within that clause of the Constitution, discuss the fitness of any particular magistrate to carry out the law, and we can cite instances which, in our view, support our contention that he is not fit to carry out his functions. We might, apart from the law or the Constitution, be free to cite his general conduct of cases, to cite his associations; and in many ways, quite within the clauses of the Constitution, it would be competent for a Deputy to discuss the fitness of a District Justice to fill his position and the temptation will always be there. I know a good many people would prefer that the judges should be subject to that criticism, but being conservative, I am in favour of placing the position of District Justice in this respect in the same category with the higher judges. I am inclined to think that the argument of the Attorney-General strengthens the case for placing the salaries upon the Central Fund.
Captain REDMOND: I am very glad to hear from the Attorney-General, authoritatively now, that these District Justices are judges. That being so, of course they must be bound by the regulations of the Constitution. And I must say I was shocked to hear from the lips of the Attorney-General the suggestion, because it is an exceedingly undemocratic and unparliamentary one, that when the salary is voted by this Dáil, any matter with which that salary is concerned might possibly be ruled out of the discussion by the occupant of the Chair at the time. I say that that is the most far-fetched doctrine of parliamentary institutions that I have  ever heard. What is the object of having the salary passed each year? It must have one object and one object alone, and that is to determine whether the recipient of the salary is deserving of the salary, whether the amount of the salary is just or unjust, and whether the conduct of the recipient of that salary merits the continuance in office of himself and his enjoyment of future salary. But for a Minister, and especially for the Attorney-General, to come forward and suggest that out of the mouth of the Ceann Comhairle should come forth a ruling that on the vote of a salary the matters with which that salary is concerned should not be fully and freely and openly discussed, to my mind, that goes back very far indeed to the days of oligarchies. However, not believing for a moment that any Speaker in any modern democratically constituted assembly would dare to give such a decision, I certainly would urge upon the Government the reconsideration of this amendment. The District Justices are judges. Well, if they are judges, let them be treated as judges. What is the reason for this differentiation?
As Deputy Johnson has said, it might be well if we could revise the conduct and judgments of judges everywhere. But that is not according to the Constitution. The judges are to be independent in the exercise of their functions. Of course by independence is meant independent of criticism of the constitutionally elected Assembly of the country, just as independent of anything else. But, the Attorney-General has characterised as mischievous my suggestion that these Justices, if they are not to be judges, should be treated as the old Removable Magistrates were. He has characterised that remark as mischievous. All I can say is that the primary objection to the old Removable Magistrates was that they were not independent of the Executive. It was not so much to their personnel. It was not even so much to their method of appointment, but the primary objection to them was that they were not in the position of independent justices. The objection was this, namely, that their actions and their judgments might be and constantly were revisable by Parliament.  That is, I say, precisely the position that these judges, as we may now call them, will be in if they are not treated in every way, both as to appointment and remuneration, and as above all the possibility of their conduct being discussed or revised precisely the same as their brother judges of the Supreme Court, the High Court or the Circuit Court. If it is the intention of the Government that their actions should not be discussed here, as appears evident from the Attorney-General's suggestion to the present Ceann Comhairle, then why not place them in the independent position that the judges will be placed in, by having their remuneration paid from the central fund and not subject to a yearly revision by a vote taken on their salary in this Dáil? I see no reason for differentiation. If these judges are to be treated as independent judges why should they not receive their pay in a manner similar to the other judges? No answer has been given to that question. No case has been put forward for differentiation beyond saying that there may be too many of them appointed. I do not think there is any reason why the numbers should not be reduced. Judges have been reduced in numbers in the past. There is no reason why vacancies should be filled up if there are too many of them appointed.
Captain REDMOND: The Minister for Finance applauds that and I can quite understand his reasons, but I think it is more likely that there will be too few appointed, but that is entirely a matter of opinion.
What I would say is this: Before the Government differentiate, as they are doing by this amendment, in their treatment of these Judges from any other Judges, they should give some sound reason for doing so, especially if they want to regard these Judges as independent Judges, in the same light and under the same terms of appointment as their brother Judges of the Supreme, High and Circuit Courts.
Mr. JOHNSON: There is one point I wish to make, and I think both the  Minister for Finance and the Attorney-General will appreciate it. The Attorney-General has said—and I quite accept his word—that it is far from the intention to bring the District Justices into the political arena in any way. I put it to the Ministers as a possibility —and even a probability—that you may have a vote of confidence or a vote of no confidence moved. You may have a vote for the reduction of the salary of the Minister for Justice, and the whole issue might be the conduct of certain Justices. That is quite possible within this scheme. The Ministry would be in the position of defending a Justice. The attack would be on the Ministry, because of the conduct of a Justice, and you would have the Justice by that means brought into a political controversy. That may not happen within this Parliament, but it is quite within the possibility of this scheme, as outlined in the Bill. It is very desirable that we should guard against it, and unless there is some very strong reason for bringing the Justices into the annual vote, which reason we have not yet heard, I would urge the desirability of placing their salaries on the Central Fund.
Mr. BLYTHE: I do not want to anticipate what the ruling of the Ceann Comhairle would be, but I do not anticipate there would be any improper discussion in the Dáil in regard to the conduct of District Justices. I do not, of course, know what any irresponsible individual Deputy might do, but if he did not do what would commend itself to the Dáil, he would get his answer, and the District Justices would not be hurt. There would be no reason for not having these salaries on the Central Fund if we were to decide that there would be thirty-three District Justices, neither more nor less: but it might well be that a great deal less than thirty-three would be sufficient. In the circumstances, I think it is desirable that the salaries of District Justices should not be excluded from review by the Dáil from time to time.
Mr. WILSON: I would like the Dáil clearly to understand the position with regard to travelling allowances. The Minister for Finance said that there  would be £200 a year paid to each District Justice for travelling expenses. The Attorney-General said the expenses will have to be vouched for. If a man is vouching for his expenses, does it mean that he is to be kept under the £200, or can he put in whatever figure he likes, or whatever the actual figure might be? Suppose his expenses reach £500, would he get that amount?
Mr. BLYTHE: That would be a matter for the Minister for Finance. He can make it less than £200 if he likes, or he can fix it at £200, or he may require vouchers for the expenses involved. Heretofore the most convenient way of dealing with this matter was to make an allowance of £200 in commutation of expenses. Naturally, where there was no travelling there would be no expenses. In general, it will be found most desirable to continue the arrangement I have mentioned, of giving a commutation allowance of £200. The Attorney-General tells me this arrangement was actually agreed on after consideration by both the Home Affairs Department and the Justices themselves. It is simply a matter of making an arrangement which will be fair to the District Justices and which will ensure that the finances of the country are properly safeguarded and that no undue charge falls on them.
Mr. McGILLIGAN: I am not convinced that the Attorney-General has made a case for the exceptional course of charging the salaries of District Justices on money voted by the Oireachtas as opposed to the Central Fund. The Minister for Finance has stated as his reason for the change that he is not sure of the number of District Justices to be appointed. But in the case of the Circuit Court Judges, in connection with which it is stated that the number shall not exceed eight, he charges their salaries to the Central Fund. In the case of the District Justices a similar statement appears in the Bill—that the number shall not exceed thirty-three—yet it is proposed to pay them with money voted by the Oireachtas. I am still unconvinced that any case for payment out of supply has been made.
Professor MAGENNIS: It might be of advantage to recall how this amendment came to be in the original draft of the Bill. In Section 70 it is provided that Justices should be appointed at such salaries as the Minister for Home Affairs, with the concurrence of the Minister for Finance, may fix. It was pointed out here repeatedly that in accordance with the Constitution the District Justices are Judges.
We must not permit bureaucratic interference with the judge, no matter how slight, not even the possibility of interference. As the result of our appeals to the Articles of the Constitution this Government amendment was introduced. The salary has now to be, as the Constitution requires, determined by law—a specific salary is named by the present amendment. Instead of the objectionable control of a ministerial office being indicated the control is given to Parliament. Now, undoubtedly, that is an improvement.
The arguments I have heard just now may be summarised in this way —that there must be some purpose in view in differentiating between the other judges, as regards the sources of their remuneration and those judges that are constitutionally quite as much judges as the others. My first consideration would be—is the independence of the judge as a judge in any way jeopardised by the fact that his salary is payable out of a fund voted from year to year? Frankly I cannot see that it is. It is alleged that the District Justice, being a part of the administration, will be subject to criticism, personal, individual, criticism in this Dáil on the occasion of the estimate being under consideration. All of us are quite aware that the independence of the judiciary, which was fought for through many centuries of constitutional battle, was secured by dividing the functions of Government, as we have divided them in our Constitution, into legislative, executive and judicial functions. There is no room left by our Constitution, and, therefore, no room left by any law, unless it violates the Constitution, for blending the executive with the legislative with the discharge of judicial functions and any Chairman  of this Dáil that would allow a criticism upon the position of one of the judges as a judicial position to be canvassed in this Dáil would, by such inconceivable conduct, have violated the Constitution.
I am as strong as any member of this Dáil for securing the absolute independence of the lowest type of judge as much as that of the highest, but I have not been convinced by any of the arguments I have heard that the proposal to bring under review the amount to be expended upon these judicial servants is tantamount to an infringement upon the judicial independence, and that is the essence of the whole matter. If I could see at this moment, when the expenditure of the nation is under review, and when every effort is being made to satisfy the public at large that no extravagance will be tolerated in any department of Government, if at such a moment in the interests of giving such satisfaction to the people whose moneys are in question, if I could be satisfied that we were going to make economies at the expense of what is fundamental in the assertion and protection of the liberty of the subject, I would say: “Perish economy.” The Circuit Judges, it is true, are a charge upon the Central Fund. That would appear to give them a special and superior status, but there was more agreement in the debates here as regards the numbers necessary for Circuit Court work than there was as regards District Justices, and it may be that we may have to increase the number of District Justices and re-arrange the provision for their expenses, and, if so, that could be done through criticism made available to this Dáil on the occasion of the discussion on the Estimates. That, I see, is a decided advantage in this matter, and I should consider that that advantage was more than out-weighed if it could be shown that what Deputy Johnson fears has any reality in it as a fear. It is true it may be objected that such-and-such a District Justice was absent for so many days or weeks, or that the public complained that they were aggrieved by the delay in his Court. That indeed may come up. I concede so much but that would not be criticism of a Judge as such.
Professor MAGENNIS: It would; but Judges of the High Court could also come under review as regards their conduct in precisely the same sense. It is not a question of discussing a verdict of a Judge, if I may say so. If a Judge took part in politics and went out and, forgetful of his high office, did something he ought not to do or neglected his duty as a Judge, is it suggested that he would not come under criticism in this Dáil, or could not come under it? Is there anything in the Constitution which safeguards him? I know nothing.
AN CEANN COMHAIRLE: Since a considerable amount of the discussion that has taken place has centred on the question of order, I may be permitted to put the point of view of the Chair on that question. The independence of the Judges is guaranteed under Article 69 of the Constitution, which reads:—“All Judges shall be independent in the exercise of their functions and subject only to the Constitution and the law.” The word “Judges” is not defined in that Article at all, and we must look, therefore, for a definition of the word somewhere else. The first sentence of Article 68 of the Constitution reads: “The Judges of the Supreme Court and of the High Court, and of all other Courts established in pursuance of this Constitution shall be appointed by the Representative of the Crown, on the advice of the Executive Council.” The Attorney-General has told us, I think, that the District Justices will be appointed and have been appointed by that method. That being so, it would seem to me that the Chair would have to agree with the opinion of the Attorney-General  that the District Justices are Judges within the meaning of the Constitution. Therefore, if they are Judges, they come within the scope of Article 69 of the Constitution and the Chair would be obliged, notwithstanding what any Deputy might argue as being in accordance with Parliamentary institutions or democratic principles, to rule out of order things which were against the Constitution. I think that if the salaries of the District Justices were on the Estimates it would be made clear, either by Standing Order or a ruling from the Chair, that the decision of a District Justice could not be discussed or reviewed in the Dáil, but I fear that the problem that would be presented to the Chair would not be solved by such a ruling, because, undoubtedly, when an estimate would be presented, to pay the salaries of thirty-three or any number of District Justices it would be open to discuss the fitness of such persons for the position. I think that could not be prevented. While their decision could not be discussed, I have great faith in the ingenuity of Deputies.
I have had some experience of it, and I can see that there are a great many things which could be discussed on that Vote, and which, while preserving the Constitution, would give very considerable scope to Deputies. I fear the Chair would be in frequent difficulties in endeavouring to interpret the Constitution. Would it be out of order, for instance, to complain that a District Justice in an area where there was a farm strike, dined every evening with the Chairman of the Farmers' Union?
AN CEANN COMHAIRLE: I could suggest a great many points that could be raised, but that would be providing  ammunition against myself, or some person occupying a similar position at another time. While I think it is clear, that having now established that District Justices are judges, their decisions could not be discussed on the Estimates, other matters regarding their fitness for the position could certainly be discussed. These matters, in the case of other judges, could only arise by motion. It is a matter I have not considered carefully, but I think I would not allow a Deputy to raise, say, on the adjournment in a rather casual manner, any matter concerning the conduct of a judge. I think the Dáil would be unanimous in agreeing to that ruling. Such a matter would have to be raised by motion definitely. Since the question of order has been raised I think it is only right I should present to the Committee the difficulties of the matter from the point of view of order merely.
Mr. O'CONNELL: There is another point I would like to bring to the notice of the Committee. If a vote comes before this Dáil I assume it is within the power of the Dáil to reject it. We might have the position that a vote for the salary of District Justices would be rejected by the Dáil. What, then, would be the position? The law provides that a certain salary must be paid to the District Justice. If the Parliament does not vote, it cannot be paid. I am open to conviction in this matter, and, honestly, I have heard nothing from the Ministry to convince me of the necessity of making this distinction in the case of a District Justice. No reasons have been put forward by the Minister or Attorney-General which would justify the discussion here, and which would justify this departure in the case of this Justice. One or two reasons which have been mentioned, that of whether there are enough or too many judges, and the other point dealt with by Deputy MacGilligan, are not sufficient to justify this very important departure from the practice in the case of the other judges.
Professor MAGENNIS: Might I say as a species of reply to Deputy O'Connell that I regard this differentiation as a sort of legitimate compromise, because there is more uncertainty and difficulty as regards the final decision with regard to numbers and expenses, involved in respect of District Judges than any other section of the Judiciary. It seems to me necessary at a period like this, a period which will last for not a few years, where cautious expenditure is to be embarked upon, and close supervision of expenditure to be made annually, that a question of this kind should be kept open, and this is the only way to do it. I agree with Deputy Johnson and his colleagues that it would be better to have no ground of grievance whatever, and no suggestion even of inferiority in the source of remuneration. I make this act of faith in the Ministry, that in answer to our demands on behalf of the District Justices, they bring this forward, that it is in their conception a reply to our demands, and at the same time provides those safeguards with regard to finance which had dictated the original form in the draft Bill. In years to come, when a new Judiciary Bill will be going through another Dáil, these District Justices will no doubt be put upon the Central Fund, but the reservation of their case here and now is in the interests of the annual review, and what Deputy Johnson urges undoubtedly has a great deal of ground for it. There is room for the abuse of the privileges of the Dáil, to attack a particular District Justice, to attack his appointment. You have already spoken, sir, of your experience of the ingenuity, we might call it the diabolical ingenuity, of Deputies getting round rules and regulations.
Professor MAGENNIS: Undoubtedly it is wise to leave as few opportunities for abuse as possible. Here we balance our inconveniences. We wish to maintain the annual control over number and expense, and at the same time we realise it does not leave an opening for abuse in the way of unfair and personal  criticism. That is why I said originally if I could see in this provision anything that attacked the immunity of this Judge, that laid him open to this departure from the Constitution to criticise his decision, I would not vote for it. I have spoken and voted in favour of it because I am satisfied there is nothing sinister in it.
Mr. JOHNSON: The objection against putting this charge on the Central Fund is that it would not be reviewable, and therefore the annual charge may not be discussed. That presents a difficulty to me. I can understand that the salary is guaranteed by the Central Fund. I cannot understand putting it on the Central Fund necessarily compels us to pay for any number of years thirty-three salaries on a given grant. Perhaps we might get some enlightenment on the constitutional and financial standpoint regarding the difference between the Central Fund and the Annual Vote.
Mr. BLYTHE: Putting it on the Central Fund would not compel us to pay annually 33 salaries. It means that the number of Justices does not come before the Dáil. It could be kept up to 33 even if the members of the Dáil generally felt there was no need for more than 25. There is a further matter: We could not put travelling expenses on the Central Fund. The travelling expenses of the District Justices will have to come before the Dáil in any case, and I believe you could get in as much talk on the question of the travelling expenses.
Mr. BLYTHE: The real point of advantage we are supposed to get by removing salaries to the Supply Vote will be got in any case if Deputies desire to exhibit that diabolical ingenuity in finding means of discussing the matter possibly on the question of travelling expenses when they come up every year. In any case, by keeping the matter a Supply Service, we do have an opportunity of considering what size the establishment will be.
ATTORNEY-GENERAL: I beg to move amendment 27: “In Section 77, lines 2 and 5, to delete the word `District' and insert immediately after the word `Justice' in each line the words `of the District Court.' ”
In Section 79, A (ii.), line 38, page 16, to delete the word “land,” and insert in lieu thereof the words “any land the Poor Law Valuation whereof exceeds £10,” and in line 40 to add immediately after the word “title” the words:—“Provided also that the jurisdiction of a justice shall not be ousted by reason of a question of title to land the Poor Law Valuation whereof does not exceed £10 being brought into issue, but in such case the decision of the justice shall not operate as an estoppel in or bar to a suit in any court for a declaration of title or in ejectment in relation to such land.”
ATTORNEY-GENERAL: This amendment arises out of a discussion which took place on what was formerly Section 78, in reference to the question of giving jurisdiction in title matters to District Justices. It will be remembered that the controversy was really engaged in by Deputies from Tirconaill, and that the shuttlecock was exchanged between them for a considerable time.
 I then said it was a matter which had been receiving my attention, and that I would consider it further. It is a matter of some difficulty. It is well known that small title cases in the country are probably the cases that take up the largest amount of time in hearing, and that if ordinary title jurisdiction were to be transferred to the District Justices, in the full sense, their time would probably be unduly occupied. On the other hand, we have had experience of the District Justices jurisdiction being ousted by quibbling points of title which was a well known trick in the game. The present amendment is a compromise which I have arrived at after consideration of the matter, and which, I think, should meet with general acceptance even amongst warring Deputies from Tirconaill, and I have the support of one of them at least in the matter. Under this amendment if small cases of trespass or assault are brought before the District Justice in ordinary circumstances the defendant's solicitor would raise the question of title, and say that an assault was committed in ejecting a man from a place where he had no right to be, and he would say he was exercising a right-of-way. Under this amendment it will be open to the District Justice to dispose of the matter as one of assault or trespass, as the case may be, and immediately settle the dispute before him, notwithstanding the question of title, and if the parties desire to go further and to have a full dress discussion of the question of title, which one gathers from Deputy Doherty are matters of a very difficult description in the Co. Tirconaill, the decision of the District Justice in the trespass or assault case is not to be a bar from a full hearing before the Circuit Judge in a suit properly brought for the purpose of testing the question of title. That, I suggest, is a workable method of dealing with what undoubtedly is a very difficult matter. The amendment I propose to insert meets the difficulty, I think.
Mr. McGOLDRICK: I wish to say that I am satisfied with the form in which this amendment appears, and I have to thank the Attorney-General for the way he has met the situation and for the manner in which he has  met us by putting forward this amendment, to give title jurisdiction to the District Justices. It will be of great value to counties other than Tirconaill. Tirconaill is not the only county, although it has received from the Attorney-General some encomiums here about its warring propensities and I do not think it is the only county that is going to benefit from this amendment as far as litigation between small holders is concerned. This question arose in committee stage in the interests of small holders in congested districts, and these districts are not alone situated in Tirconaill, but are to be found in many other counties and it was really a hardship at all times and rather intolerable that these people should not have an opportunity of settling their disputes in their own immediate area at a minimum of trouble and expense. The matter was not dealt with when the Bill was drafted and therefore for that reason the amendment was put down on committee stage. There is still another circumstance that makes it advisable and necessary that this jurisdiction should reside in the District Justices.
A great many small holders in these backward districts are people who have no language but their own language. They do not know the language of the stranger; they only know their own language, and as a consequence they are placed at times in the Courts and elsewhere at an intolerable disadvantage. In the Courts their evidence had to be interpreted. There is nothing that has given such satisfaction to the community in general as the appointment of District Justices who have a knowledge of the Irish language especially in counties and districts where Irish is the only language understood and spoken. The appointment of competent Irish scholars as District Justices in these Irish-speaking districts will be a real boon to the poor people and to others who can only speak their own language. These people can now come with confidence into Court and state their cases in their own language, and without being subjected to the difficulty and the disadvantage of having their evidence interpreted for them. It is to  be feared, although I see there are to be two men with a knowledge of Irish put on the Rule-making Authority of the Circuit Courts, that there will not be the same advantages in this respect in the Circuit Courts. I would ask the Government to take good care when they are making appointments of Circuit Court Judges to carry on the business of these Courts in counties like Tirconaill, Galway and Kerry, all of which are Irish-speaking counties, that the Judges appointed will have a good knowledge of Irish and will be competent to deal with all cases which come into their Courts. In many of these cases the parties concerned will only be able to give evidence in their own language, and hence it is of the utmost importance that the Judge hearing their case shall understand that language. I may say that in that matter I am very apprehensive, that is as regards the appointment of Circuit Judges with a knowledge of Irish in the Irish-speaking counties. I again desire to thank the Attorney-General for introducing this amendment which meets an objection I put forward on the Committee Stage of the Bill.
Mr. O'CONNELL: I just desire to say that the amendment moved by the Attorney-General meets the points which I drew attention to on the second reading of this Bill. The amendment, in my opinion, will prevent the frivolous raising of questions of title in order to delay decisions in assault cases or on matters relating to rights-of-way. The lawyer will now see that it would be of no benefit to him to insist, or to claim, that there is a question of title in a case in order to prevent or to delay a decision, because there will be a decision in any case, and he will have to go to another Court to settle the question of title. In that respect, the amendment meets the objections that I had to the Bill as originally drafted.
“(iv.) In proceedings at the suit  of the state or any Minister or Government Department or any officer thereof to recover any sum not exceeding £25 due to or recoverable by or on behalf of the State, whether by way of penalty, debt, or otherwise, and notwithstanding any enactment now in force requiring such sum to be sued for in the High Court or other superior court.”
This amendment is somewhat similar to amendment 17 which has already been passed. It enables small debts due to the State to be recovered in the District Court where they come within the District Court jurisdiction.
The words in the Bill were originally inserted because of some misconception, and I am afraid the effect of them would be to make the jurisdiction, on the criminal side of the District Justice's Court, depend on the consent of the accused. That would lead to very serious complications. The words should not really be there at all, and therefore, I propose their deletion in this amendment.
Mr. JOHNSON: I am doubtful about the effect of this amendment. It appears to abolish the right of the accused person to insist upon a trial by jury. I do not know whether that is so or not. While the summary trial means a lighter penalty, the accused person will not be able to give evidence in his own defence if he has not any right to go before a jury. The amendment seems to me to remove the possibility of the accused preferring to go before a jury. I do not know whether that is the intention, but if it is I question the wisdom of it
Professor MAGENNIS: Deputy Johnson perhaps, forgets that that is provided for in the Constitution. In the case of minor offences, what would have been the claim of every citizen to demand a trial by jury of his peers is taken away. I think the original form in the draft was due to some misapprehension,  that the rights of the citizens required to leave it to the accused to decide whether or not he would submit there and then to the summary jurisdiction of a District Justice, but that is really provided for in what is practically the last clause of the Constitution in dealing with the Judiciary.
ATTORNEY-GENERAL: The effect of this is really to enable the Court to decide whether the case is a minor one and can be disposed of summarily. There may be cases, for instance, of a very serious dispute which if it continued and led to a grave disturbance could not be regarded as a minor offence, and must be sent on to the Circuit Courts; but at other times the dispute is ended and the matter comes before the Court and peace perhaps is restored. In such cases, I think, it is highly desirable that the District Justice should be able to say that he would treat such a case as a minor offence and dispose of it there and then, and thus end all further trouble in the matter. The District Justice, under the Constitution, can only deal with minor offences, and this, I think, should not be a matter of election with the accused.
Major BRYAN COOPER: I think there is some misunderstanding with regard to this amendment. It is rather unfortunate and a pity that we should have amendments of this kind brought in on the Report Stage of a Bill, because Deputies are prevented from introducing at this stage amendments dealing with any of the offences mentioned in Sub-Section (B) of Section 79. Deputies, for instance, might wish to introduce amendments with regard to money or property not exceeding £20 in value. They might wish to limit the amount that the District Justice would have power to deal with to £10, or perhaps less, but it is impossible for Deputies to do so under existing circumstances. We have been inadvertently deprived of our rights in that respect, but I am sure it was quite uninternational on the Attorney-General's part. I think there is a great deal to be said for the principle of having minor offences treated quickly. I hope the Attorney-General will take to heart that he has unintentionally robbed us  of the opportunity of putting down an amendment to his amendment if we desired to do so, and I trust he will see that such a thing will not happen again in the future.
Mr. JOHNSON: What I think about this is that there may be offences which in the mind of the District Justice should be dealt with summarily, but it may be of the very greatest importance to the accused, and he may desire to be tried by a jury. He may want an opportunity to have the offence, of which he is charged, fully investigated by a jury of his peers. While the clause in the Bill as it stands gives him an opportunity of saying that he prefers to be tried by a Summary Court, he still has the right to demand a trial by jury, and I submit he should not be deprived of that right. I am afraid he will be deprived of that right if this amendment is accepted.
Mr. JOHNSON: Does not that involve expenditure that he should not be asked to undergo? After all, I suppose in 99 cases out of 100 the accused person would like to be dealt with summarily, but it is the hundredth person I am thinking of, where a person prefers to have the charge hanging over him because he is not confident that his character would be fully investigated at a summary court and prefers to go to a jury. I think we should make it possible for that individual to demand trial by jury.
ATTORNEY-GENERAL: He can appeal against the decision to the Circuit Court. Of course, it will involve delay, but he can still appeal against the decision to treat the matter as one for summary jurisdiction.
“In Section 79, B (iii.), line 56, page 16, to insert after the word ‘camera’ the following words:—‘and when so heard, if the assaulted person is a female, one other female person nominated by the assaulted person shall be entitled to be present in court during the whole hearing of the case.’”
This amendment is in pursuance of an undertaking I gave Deputy Morrissey on the Committee Stage. It provides that where a case of indecent assault is being heard in camera, by order of the Court if the assaulted person is a female one other female nominated by the assaulted person shall be entitled to be present in Court during the whole hearing of the case. I think this amendment meets the matter much more successfully than the amendment that was proposed by Deputy Morrissey.
Mr. JOHNSON: I think what the Attorney-General has stated is true, but I submit to him this suggestion, that failing the assaulted person nominating another woman to appear in Court, the Court should do so, and to insert the words “nominated by the assaulted person or by the Court.” That would ensure that though the accused person might be quite careless, or ignorant enough to fail to make any nomination the Court could do so, and should do so.
ATTORNEY-GENERAL: I am afraid I could hardly accept that suggestion, one reason being that it would compel the woman to have someone in Court when she would not want it and when she might desire the case heard completely in camera. It would also necessitate providing someone like a wardress or hired listener to introduce into Court when the person concerned had no friend. It would also, arising out of a number of discussions I have had on this Section, on which I have had several representations made to me, appear that people seem to look at it as if the female whose protection they had in mind were the prisoner. That is not so. The person concerned is the accuser, the complainant who comes in from outside and who will be entitled to bring her own friends with her if she so desires.
“In Section 82, line 44, page 17, to delete the words, `deal with such charges against children as he may consider to be of a trivial nature in such manner as may seem just,' and insert in lieu thereof the following words:—`there deal in such manner as shall seem just with all charges against children, except charges which by reason of their gravity or other special circumstances he shall not consider fit to be so dealt with.' ”
This amendment is introduced to meet an undertaking of mine to Deputy Johnson with reference to Children's Courts. Deputy Johnson proposed an amendment on the Committee Stage and I admitted to him then that I thought the expression “charges of a trivial nature” was hardly a happy one, and that I would try before the Report Stage to devise something more apt.
“The rule-making authority for the District Court shall be the Minister  for Home Affairs, with the concurrence of the Minister for Finance in respect of any matter affecting public revenue or expenditure, and with the concurrence of the majority of a committee consisting of (a) five District Justices to be nominated by the general body of Justices, (b) two practising barristers selected by the Council of the Bar of Ireland, and (c) two solicitors selected by the Council of the Incorporated Law Society of Ireland. Each member of the said committee shall hold office for five years and be eligible for re-election, and casual vacancies shall be filled in accordance with the foregoing principle of selection. The Chairman of the Committee shall be such one of the five District Justices as the members of the Committee shall elect.”
In moving amendment 35 we come back to a matter upon which there was an amount of controversy on the Committee Stage. On that occasion you allowed me to move an amendment based on the Report of the Judiciary Committee, a report which in this instance the Government have completely thrown overboard by adopting a rule-making authority for District Courts purely of their own invention. The Attorney-General on that occasion objected to my amendment because it did not provide for the representation of the Minister for Home Affairs. I have been anxious to meet the Government as far as I could, and I have drafted this amendment providing that the rule-making authority shall be the Minister for Home Affairs, with the concurrence of the Minister for Finance, in respect of any matter affecting public revenue or expenditure and with the concurrence of the majority of a Committee consisting of (a) five District Justices to be nominated by the general body of Justices, (b) two practising barristers selected by the Council of the Bar of Ireland, and (c) two solicitors selected by the Council of the Incorporated Law Society of Ireland.
Major COOPER: I hope this may prove acceptable to the Government,  because it is precisely similar to a provision they have made for Circuit Courts, simply substituting District Court for Circuit Court and District Justice for Circuit Judge. When replying I hope the Attorney-General will give some indication as to why what is sauce for the goose should not be sauce for the gander, if one may talk of Judges in that disrespectful manner, and that he will tell us why he should differentiate between the rule-making authority for Circuit Courts and District Courts. He produced one reason which was, I think, that it would be much harder to select five District Justices suitable for this special work than it would be to select five Circuit Judges. That is what I understood, but I may be wrong.
Major COOPER: I am very sorry if I misunderstood the Attorney-General. I recollect him stating that considerations of distance might have to be taken into account. After all we may assume that Justices who elect their own representatives will take that into account. As he has accepted that principle I need not argue it further. The point on which I want an explanation is why a different rule-making authority is needed in the case of District Courts to that of the case of Circuit Courts. The second point is that the Attorney-General throughout, and in his amendment, has all the time insisted that in the District Court the rule-making authority should not be the Committee consisting of representatives both of the District Justices, and of the barristers and solicitors practising in these Courts, that they should not be an actual part of the authority but only assist the Minister; while in the case of the High Courts and the Circuit Courts the concurrence of the Committee, or a majority, is necessary. That is a very important point. Here we get back to the old question, the question of status, and why the District Justices  are to be treated on a different plane to the more highly paid and more highly placed members of the judicial profession.
Having regard to the arguments with which we have been met, there does seem to be a certain intention in the Bill to put the District Justice on a different footing and make him, in a sense, not the servant of the people but the servant of the Minister; that he will be more under the Minister in a disciplinary sense, and more under the Minister's control than a Judge of either the High Court or the Circuit Court. I was very glad indeed to hear the Attorney-General say that the District Justices were Judges within the meaning of the Constitution, that they were to be—I think I am quoting him accurately now—independent in the exercise of their functions. But they are not independent in the exercise of their rule-making. They are entirely dependent on the Minister, and even though all the District Justices and all the barristers and solicitors practising in the Courts were to disagree with the Minister, they would have no power; they are only there to assist, and their concurrence is not necessary. One cannot help feeling that the Minister may, if he thinks fit, sweep away all the recommendations with one stroke of the pen just as the Government in this case have done with the recommendations of the Judiciary Committee.
AN CEANN COMHAIRLE: Yes; but the principle is exactly the same. The Attorney-General, if one might say so, is inserting one solicitor and one barrister. Before we start with the discussion of these amendments, perhaps we could come to an agreement with regard to the way in which they are to be dealt with. If we took amendment 37 we might be able to dispose of the question of barristers and solicitors,  and then we would have the general question of “concurrence” instead of “assistance” on amendment 35.
Major COOPER: I do not want to press my point. I appear to have anticipated Deputy Johnson in putting on representatives of those who work in the Courts. I suppose he will now attribute other views to me. I will not fight the Attorney-General over the question of one or two. If he thinks it better only to have one barrister and one solicitor, I will not press that point.
Captain REDMOND: I was going to say that the main point, to my mind, in these amendments is, not the number of barristers or solicitors proposed on this Committee, but rather whether they are to be there as assistants or part of the rule-making authority.
Captain REDMOND: Amendment 37 only proposes that they should be added after the word “assistance.” I would suggest that the best course for us to adopt would be, as far as we are able, to decide first of all whether it is to be with the concurrence of these gentlemen or with their assistance. Having decided that question, then the question arises: How many of them, and in what capacity they are to act?
Captain REDMOND: If we were to  pass amendment 37 it would amount to acknowledging the representatives of the Bar and the solicitors' profession as mere assistants and not part of the authority.
Mr. JOHNSON: The real issue is not between “concurrence” and “assistance,” but as to who is to appoint the Committee. That is the issue, because the Attorney - General's amendment must be read in conjunction with Section 94. The Committee appointed by the Minister for Home Affairs will approve by a majority—that is equal to concurrence. The question is: How is that Committee to be appointed?
Major COOPER: The point that arises is that in Deputy Johnson's amendment the concurrence of the majority of the Justices will be necessary, but the concurrence of the representatives of the bar and solicitors' profession will not—they do not come into Section 94. I would be willing to convenience the Dáil and the Attorney-General.
ATTORNEY-GENERAL: On amendment 35, it will be remembered that the  controversy here on the last occasion was not quite as Deputy Cooper remembers it, but rather more like what Deputy Johnson has suggested. There were several points at issue, and I made certain offers which I have fulfilled in my amendments. I proposed that I would bring in an amendment to provide that the rules be laid before the Oireachtas, and I have an amendment to that effect. I also stated I would consider associating both branches of the legal profession with the rule-making authority, and my amendment No. 37 is my fulfilment of that undertaking. Deputy Cooper's amendment re-opens the discussion that we had here in Committee on the question as to whether the members of the rule-making authority who were District Justices should be chosen by election from the body of District Justices or should be nominated by the Minister, and it also raises the question of concurrence which I will deal with shortly.
I have myself never been able to see the cogency of the attack made on the subject of concurrence because I suppose for polemical reasons, it studiously and steadfastly ignores Section 94, under which it is provided that the rules shall be approved of by a majority of the justices so nominated, signed and sanctioned by the Attorney-General, the Minister for Home Affairs, and the Minister for Finance, and shall have no validity until so approved of, signed and sanctioned, so that there really is nothing to say on the subject of concurrence if one did not ignore Section 94.
ATTORNEY-GENERAL: The question of how the District Justices are to be selected for the purpose of drafting rules is, I take it, the matter upon which there is most controversy. I explained in Committee the reason why the Section was put in the way in which it stood, namely, that when you are selecting from a body of considerable number, certain persons to do a technical job—and I think most people will admit that legal draftsmanship is in the nature of a technical job—that the persons who are selected should be chosen for their skill in draftsmanship, and that the best way of arriving at the most skilled was not to circulate ballot papers amongst the body of District Justices in order that they might elect draftsmen from amongst their number. I suggest that that proposition cannot recommend itself to any reasonable person. You will have 33 District Justices dotted all over the country, and it must be remembered it is sheer confusion to suggest that the drafting of the rules of the Court is anything like the nature of the discharge of a judicial function. It is the doing of a technical piece of work which will come before the Dáil for final approval as regards matters of substance before it becomes effective, but to say that ballot papers are to be sent out to 33 District Justices and to put it to them to elect members of their body with whom perhaps they are not in daily contact, without an opportunity of consulting these persons, is, in my opinion, not a reasonable proposition. Moreover, the selection might be one of the greatest inconvenience, because draftsmen, during the time they are engaged upon this very difficult and very heavy task, involving the reading of many Statutes, Petty Sessions Acts, and so on, and the various existing rules, and the consolidating of them into a coherent, simple code of procedure will involve having a number of the Justices in Dublin for an extended period. If those who are to engage upon this are  to be selected by election, probably every Justice would vote Number 1 for the Justice of his own district, and certainly he will hardly be able to consider a very important consideration, namely, whether the particular Justices proposed to be elected can be spared and their places filled by Deputy Justices while they are so engaged. The position of the Circuit and the High Courts is quite different. The High Court rule-making authority consists of all the Judges. They are all here in Dublin, all accessible to one another for frequent consultation. The rule-making authority of the Circuit Court consists of a majority of the Circuit Judges— five of the eight—who would presumably be accessible, probably residing in Dublin, or at least a number of them will. When you come to the 33 District Justices, I suppose everyone who has sat on a drafting committee would agree with me—I am sure Deputy Figgis would, if he were here—that a large drafting committee is not as efficient as a small one; in fact that even a Committee of one might be the most efficient drafting committee of all.
The object of this provision is to have a small selected number of technicians, chosen from the body of District Justices, to do a technical task here in Dublin until they finish it, and the result then will be laid on the Table here for discussion as to whether it meets with the approval of the Dáil. These are the reasons for adhering to the proposal as we originally drafted it. I have tried to give effect to my undertaking as to the submission of the rules and as to the associating of members of both professions who will be a check upon the operations of the Drafting Justices, and I say that the idea of concurrence is fully met by Section 94, where approval is required, and co-ordination of the rules with the rules of the other Courts will be secured by requiring the approval of the Attorney-General of the time of the rules before they can become effective. For these reasons I suggest that Deputy Cooper's amendment is not workable, is not reasonable in all the circumstances, and should be rejected.
 He says that, in his opinion, the amendment is not reasonable and is not workable. I wonder does the Attorney-General remember anything about the Judiciary Committee, of which he was a member? Does he now say——
Captain REDMOND: Nominated by, I do not care whom. I am not talking of its nominators but of its composition, including the Attorney-General. I wonder does he remember that in the report, which he signed, the rule-making authority proposed for the District Courts was with the exception of making no mention whatever of the Minister for Home Affairs, or any other Minister, precisely the same as the amendment now proposed by Deputy Bryan Cooper. Was it then unreasonable? Was it then unworkable? If it was, how came the Attorney-General to sign the report? If it was not, what has happened in the meantime to make it now unreasonable or unworkable? I have heard many plausible reasons put forward for departures from previous opinions or convictions, or even declarations over one's own signature, but I never heard a more flimsy, or shallow, or less substantial defence of such a change of attitude as that put forward by the Attorney-General. This Judiciary Committee, of which the Attorney-General was a member and a signatory, never mentioned any Minister in relation to any rule-making authority, and during the Committee Stage when I complained of the introduction of a Minister—I do not care who the Minister is—I was told by the Attorney-General that the same applied in practice both in England and in Ireland. Perhaps I may refresh the Attorney-General's memory—it seems to be rather lax in regard to the Judiciary Report, and it may not be perfect on this matter either—on the method adopted both in England and in Ireland in the past for rule-making authorities. All rule-making authorities in the past, both in England and in Ireland, both in Common Law and in Chancery, were made by Judges, and Judges alone. In the Judicature Act of 1873, which applied  only to Great Britain, there was a schedule containing certain rules, but in Section 74 of that Act it is laid down that at any time with the concurrence, mark you, of the majority of Judges, that the Supreme Court in England may alter, annul, or make rules. There is no mention whatever in this English Judicature Act of a Government Minister. But what about the Irish Judicature Act of 1877?
Captain REDMOND: What about the Irish custom, where the Attorney-General mentioned that it was the Lord Lieutenant? His words were, in point of fact, that the Judicature Rules in this country up to this have been made by the Lord Lieutenant. The Irish Judicature Act of 1877, following the English one, also provided for a set of Rules in the Schedule, but Section 61 of that Act says that “the Lord Lieutenant may with the concurrence of a majority of Judges of the Supreme Court alter, or annul, or have power to make Rules.” Why was the Lord Lieutenant brought into the Irish Act? The answer is very simple, because we had no Parliament of our own at that time, and instead of laying the Rules on the table of the British House of Commons, as was done in the case of the English Rules, the Rules were promulgated by the Lord Lieutenant by Order in Council. As for the Lord Lieutenant having anything to say in the making or alteration of any existing Rule, the Attorney-General knows as well as I do, that he was merely the means of having the Rules as made or altered by the Irish Judges, and by them alone, put into effect. Therefore, if anyone should have anything to do with rule-making authorities in this country it certainly should not be any Minister, but the representative of the King. If the Governor-General should be placed in the same position as the Lord Lieutenant was, he would be merely the means of putting these Rules into effect by an Order in Council and not be any party to the making of them. There is no necessity for that now because we have our own Parliament,  and, therefore, our own Rules can be laid on our own Table, as were the English Rules in the English Judicature Act of 1873. When this question of rule-making authorities arose, as I presume it did, in the discussions—and I suppose there were some discussions —in the Judiciary Committee, why was it that the Attorney-General did not then propose that some Minister should be part of these rule-making authorities? No such thing. He assented, and he signified his assent by affixing his signature to an unanimous report recommending that the rule-making authorities should consist of the parties mentioned in Deputy Cooper's amendment, with the exception of the Minister for Home Affairs, or any other Minister. However, the Attorney-General has changed his mind. He is rather fond of change; but he is entitled to it also, and we must accept the inevitable. The Minister for Home Affairs is to be part of the rule-making authority. That, I am afraid, now seems to be a cardinal principle with the Attorney-General, and I presume the Government. Very well, if the Minister for Home Affairs is to be part of this rule-making authority he should not be the sole rule-making authority. That is my complaint. My complaint in the first instance is, that he should have anything to do with the rule-making authority, and my second complaint is that he should be the sole rule-making authority. He is not the sole rule-making authority for the High Court, nor for the Circuit Court. A member of the Government, Deputy Duggan, I think, moved that the word “assistance” be deleted, and substituted therefor the word “concurrence” in relation to Circuit Judges. So far so good, but why should he be still the sole rule-making authority for District Courts? It may be said that he is to act with the assistance of certain Justices nominated by him, and also the Attorney-General has been graciously pleased to add, to a limited degree, at any rate, certain members of the legal profession.
 Up to this, frankly, I tell the Dáil I do not know. I have got no answer yet that I can consider an answer from the Attorney-General on the point. He says that these District Justices will require to have great knowledge and great learning in order to be able to draft rules. Granted. Who is to determine their capacity for drafting rules? Is it the Minister for Home Affairs? Is he such a judge of District Justices' capacity that he is better able to judge them in that respect than their own brother justices? The Attorney-General talks in a very flippant way of sending round ballot papers. I wonder did he talk that way in the Judiciary Committee. The Attorney-General smiles at the suggestion of having an election of District Justices. I wonder did he talk that way in the Judiciary Committee. What is there more extraordinary or more impossible or less feasible in the holding of an election among thirty-three District Justices than among eight County Court Judges? It is only a difference of number. No other difference whatever. “But,” says the Attorney-General, “Circuit Judges will be all round Dublin; they will be quite accessible.” I thought this was a Bill to decentralise litigation. I thought this was a Bill whereby the Circuit Judges would be constantly at work throughout the country, and that they would not be settled down in their snug, contented homes in Dublin for three-quarters of the year. But now we hear they will be quite accessible. They will be really at our door. To tell the truth, there is no more reason why District Justices should be nominated than why Circuit Justices should be nominated, and I defy any member of the Government to give me any reason. So much for the point of nomination.
Now, we come to the question of “assistance” or “concurrence.” I quite agree that Section 94 does provide for the approval of the District Justices, whether these District Justices were nominated or elected, as the case may be. In this case, according to the Bill as it at present stands, they will be nominated; but Section 94 says nothing about the position of barristers and solicitors, whom the Attorney-General  has now added to the Committee. I admit he has added them in a very limited sense. He has added them only as assisters. He has politely told the Minister for Home Affairs, “You can take the opinion of barristers and solicitors, if you like, but their opinion will not count, it will have no effect legally.” That is what it will amount to. Section 94, even with a limited scope of the barristers and solicitors on this Committee, entirely ignores it. I will be asked, “Oh, why should Section 94 have anything to do with it?” I would suggest that when we come to that Section, no matter in what capacity solicitors or barristers are placed upon this Committee they should at least be recognised in Section 94. Now, we have here a strange state of things. We have the Attorney-General and the Government producing a Bill, nominally in accordance with the Judiciary Committee which they have brought into existence. At one time they adopt the Judiciary Committee's Report and tell anyone who was opposed to it that that was not in the Judiciary Committee's Report. Another time they refused to adopt it, and, if anyone says that it was in the Judiciary Committee's Report, they as much as say, “Oh, we signed this yesterday, but we have changed our minds to-day.” I think there should be some more substantial reason given to the Dáil for this change of attitude, and for this striking differentiation between District Justices and other judges. We were all delighted to hear the Attorney-General admit to-day that District Justices are judges. If they are judges they are entitled in this respect, as much as in any other respect, to be treated as judges. But, there is no doubt whatever that the placing of the rule-making authority under the complete control, as the Section as it now stands does, even with the addition of the barristers and solicitors and the Minister for Home Affairs, leave one to surmise that there is something at the back of the head of the Attorney-General or the members of the Government whereby they seek to differentiate between the status of the District Justices and other judges. The Attorney-General has fulfilled  his promise by his two amendments.
I fully acknowledge what he has done in that respect, but I thought that by now he would have come to see, just as he did in regard to those two matters, that he could easily have gone the whole hog, that he could easily have placed the District Justices in precisely the same position in regard to the rule-making authority as the other Judges. I think it would be better for the sake of uniformity, and it would render the Bill a far more symmetrical one, and it would adopt the same principle in regard to all the Judges. I yet have to have it shown to me why there should be any distinction in regard to the method, the composition, or the manner in which the rule-making authority for District Justices should be set out, from the composition and the manner of the other judges. Perhaps it is not too late for the Attorney-General to relent. I certainly think that this is a matter of considerably more gravity than most Deputies might realise. The whole future of the working of the District Courts will largely, if not entirely, depend upon the rules which are made for the procedure and the practice of those Courts. Everyone in the country is concerned in them, not only members of the legal profession, especially country solicitors, but also every one who may at one time or another have the misfortune to come before those Courts. I think we deserve an explanation more substantial, and with more sincerity behind it, than has been given by the Attorney-General.
Major COOPER: I do not mean to suggest, and I hope I do not suggest, that the Attorney-General did not fulfil those pledges. He has fulfilled every pledge he made, but I think he will agree that this matter was left open between us. He promised to give it consideration, and I was free, if the result of that consideration did not meet with my approval, to suggest an amendment. There is one thing which I think was a little unfair; he more or less suggested I was in favour of a large Drafting Committee. I never in my life suggested such a thing. The Drafting Committee  I suggest in this amendment is actually smaller than the Drafting Committee for the High Courts, and is the same size as the Drafting Committee for the Circuit Courts. When the Attorney-General was talking about the Drafting Committee for the Circuit Courts he rather confirmed my suspicion that he does not know the Circuits very well. He talked as if the majority of the Circuit Court Judges will be living within a short distance of Dublin.
ATTORNEY-GENERAL: As a matter of explanation, assuming the rules are all prepared now, the District Justices are already appointed. They are all actually engaged on their work. The Circuit Court Judges, before they commence their work, will be here available to draft the rules.
Major COOPER: That was not quite clear to me, but I will not pursue it further; yet I am not entirely convinced. Now I come to the question of elections. I always thought that the larger the constituency you had to choose from, the better representatives you were likely to get. In choosing five Judges from eight, you might possibly get one or two not really qualified. If you have 33 to select from, you are much more likely to choose the five men best fitted for the job. There are arrangements for relieving District Justices while they are on their holidays. If it is contended that thirty-three District Justices are not fit to choose men to represent them on a rule-making authority, what becomes of democracy? Law-making is as complicated and technical as rule-making. Drafting amendments is as difficult as drafting rules, yet we can go into the streets and take every man and woman of 21 years and they can choose their representatives for this difficult and technical work. Now, the Attorney-General says you cannot trust thirty-three educated barristers or solicitors to choose for themselves a rule-making authority. Really, I am not convinced, and while I am sorry to be thought unreasonable, until I get more convincing reasons than those put forward I will stand to my guns.
|Pádraig F. Baxter.
John J. Cole.
Bryan R. Cooper.
Séamus Mac Cosgair.
Tomás Mac Eoin.
Pádraig Mac Fhlannchadha.
Pádraig Mac Giollagáin.
Risteárd Mac Liam.
|Tomás de Nógla.
Aodh O Cúlacháin.
Liam O Daimhín.
Seán O Duinnín.
Donchadh S. O Guaire.
Mícheál R. O hlfearnáin.
Domhnall O Mocháin.
Domhnall O Muirgheasa.
Tadhg P. O Murchadha.
William A. Redmond.
Tomás O Conaill.
|Earnán de Blaghd.
Seoirse de Bhulbh.
Louis J. Dalton.
Máighréad Ní Choileáin, Bean Uí
Patrick J. Egan.
Osmond Grattan Esmonde.
Domhnall Mac Cárthaigh.
Liam T. Mac Cosgair.
Maolmhuire Mac Eochadha.
Pádraig Mac Fadáin.
Seán P. Mac Giobúin.
Seoirse Mac Niocaill.
Liam Mac Sioghaird.
Liam Mag Aonghusa.
Pádraig S. Mag Ualghairg.
Martin M. Nally.
John T. Nolan.
Peadar O hAodha.
|Mícheál O hAonghusa.
Criostóir O Broin.
Seán O Bruadair.
Próinsias O Cathail.
Aodh O Cinnéide.
Conchubhair O Conghaile.
Eoghan O Dochartaigh.
Séamus N. O Dóláin.
Peadar S. O Dubhghaill.
Pádraig O Dubhthaigh.
Eamon S. O Dúgáin.
Séamus O Leadáin.
Fionán O Loingsigh.
Thomas O Mahony.
Pádraig O Máille.
Séamus O Murchadha.
Pádraig O hOgáin (Gaillimh).
Seán M. O Suilleabháin.
Caoimhghín O hUigín.
Seán O Príomhdhail.
Patrick W. Shaw.
`and with the concurrence of the majority of a committee consisting of five Justices of the District Court elected by the Bench of District Justices. Each member of the said committee shall hold office for five years and shall be eligible for re-election, and casual vacancies shall be filled by election as aforesaid. The Chairman of the Committee shall be such member as the members of the Committee shall elect.'.
Amendment 36 raises pretty well the same question, and confines the Committee to five Justices of the District Court elected by the Bench of District Justices, leaving out practising barristers and solicitors. I assume from the discussion in Committee on the last occasion that the Attorney-General had an objection to practising barristers, and perhaps a greater objection to solicitors. I therefore thought the amendment, in the form in which it was sent in, would more likely meet with his approval than if it contained these two elements. There is no need to go over the argument again. I believe it is unwise to leave the nomination of this Committee to the Minister for Home Affairs, who is a political officer.
ATTORNEY-GENERAL: Is this amendment not covered by the decision which has been registered? On the question of concurrence, the question of the number of Justices, and the mode of selection, I suggest the amendment is already disposed of.
Mr. JOHNSON: I do not know what the decision of the Dáil was. I take it the Dáil passed the inclusion of two practising barristers and two solicitors. That is not what I am proposing. The decision of the Dáil was against accepting the case. That is my proposal.
AN CEANN COMHAIRLE: It is very hard to say what the decision of the Committee was. The discussion was on the mode of selection of a particular body, and whether the concurrence or assistance of the body should be in question. From that point of view I think the matter of concurrence, and the question of selection which comes into this Amendment have been decided upon, and seeing that a decision has been reached, I think a discussion on this Amendment could only be a repetition of the previous one.
Mr. JOHNSON: I want to ask the Dáil to decide that the Amendment I put down is an amendment acceptable. It differs distinctly from the amendment upon which we have voted. I do not intend to cover the grounds already travelled. I do not intend to urge reasons why this Amendment should be accepted.
“In Section 92, line 1, page 19, to insert after the word `assistance' the words `of a Committee consisting,' and in line 3 to add after the word `purpose' the words `one practising Solicitor nominated by the President of the Incorporated Law Society of Ireland, and one practising Barrister nominated by the Council of the Bar of Ireland.”'
This is to fulfil my undertaking to associate members of the two professions with the rule-making authority, and notwithstanding what Deputy Johnson has said, I do not know which of the two professions deserves or has my greater affection. I may say I would be quite willing to amend Section 94 by inserting the names of the two professional men, that is by adding two persons who must approve of the Rules.
ATTORNEY-GENERAL: If I have agreement I would propose to amend  Section 94 by saying “By a majority of the Committee consisting of the Justices named by the Minister as aforesaid and the practising Solicitor and Barrister aforesaid.”
“All existing solicitors of the Supreme Court of Judicature in Ireland and all existing Commissioners to administer oaths shall be transferred to and become solicitors and commissioners respectively of the several courts established under this Act.”
This is simply the removal from an earlier part of the Bill of what is a general provision, and which, therefore should not be included amongst the particular Sections. It is a provision dealing with solicitors and commissioners.
`Nothing contained in this Act shall take away or prejudice the right of any party to any action in the High Court or the Circuit Court (not being an action for a liquidated sum, or an action for the enforcement,  or for damages for the breach of a contract) to have questions of fact tried by a jury in such cases as he might heretofore of right have so required in the Supreme Court of Judicature in Ireland, and with like directions as to law and evidence, but no party to an action in the High Court or the Circuit Court for a liquidated sum, or an action for the enforcement or for damages for the breach of a contract shall be entitled to a jury unless the Judge shall consider a jury to be necessary or desirable for the proper trial of the action, and shall of his own motion or on the application of any party so order. Subject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question or issue tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or waried by the appellate tribunal.”
This amendment transfers from Section 48 the provision dealing with juries in Circuit Courts and inserts it here amongst the general provisions at the end and applies it to the High Courts. It contains two new provisions to which I should direct attention. The first is that in an action of contract a jury must be asked for. That is, an application must be made to the Court to have a jury in actions of contract. In cases of tort a jury is obtained merely by serving a notice in the office. Here a judicial ruling will be necessary, and it will be for a Judge to decide that a case is one which involves issues of fact which should be submitted to a jury or whether it is a matter of law which ought not to be submitted to a jury. This part of the amendment gives effect to an understanding given to Deputy Good and other Deputies as regards the question of prosecuting actions of contract. In that connection for some years past there has developed in the High Court a system of non-jury trials for business  cases which proved very efficient, particularly as developed by Mr. Justice Dodd who, since the death of Chief Baron Palles, has been the greatest common lawyer we have in this country. Under him a system of non-jury trials was developed. I think it will be found that that system in contract cases, many of which should be sent for account before an official, will be found satisfactory.
Now, the second provision is one which the Bar is anxious to have inserted. It begins with, “Subject to all existing enactments,” and the purpose of it is this, that “The cost of every civil action and of every civil question and issue tried by a jury in the High Court or in the Circuit Court shall follow the event unless, upon application made, the Judge at the trial shall for special, cause shown and mentioned in the order otherwise direct”; and then there is power of appeal on the Judge's ruling as to costs. The point of that provision is this: If the Judge in a jury case has still absolute discretion for awarding costs, notwithstanding what the jury's verdict may be, then the advocate has to trim his sails, and instead of devoting his attention to getting a verdict from the jury he has to proceed in such a manner as may not offend the Judge, who has a very serious whip in his hands in the matter of costs. It is the opinion of the Bar that this provision, which existed under the old Judicature Act, did not make for independence of advocacy, and the Bar is anxious that this amendment should be inserted in the Bill.
“In every trial whether in the High Court or the Circuit Court of a civil case before a judge and jury, the jury shall consist of twelve members and a majority vote of nine of those twelve members shall be necessary and sufficient to determine the  verdict. The judge shall so inform the jury and the verdict of such nine members or upwards shall be taken and recorded as the verdict of the jury, without disclosure of the dissentients, if any such there be.”
This amendment transfers the provision as regards a verdict of nine members of a jury being sufficient. It is put here amongst the general provisions and applies to all juries. There is one reason in particular why that is necessary, namely, that doubts have arisen whether the old County Court Jury provision which provided for a jury of six, would not have survived in relation to cases within the old County Court Jurisdiction and so would have complicated the matter. This amendment gets rid of the doubt and applies the verdict of nine to all verdicts in civil cases.
“Every appeal from a judgment of the High Court or the Circuit Court in an action tried by a judge and jury, or from any other judgment of the High Court or the Circuit Court founded on the verdict of a jury in a civil case, shall be made by way of motion before the appellate tribunal for a new trial, and, in the case of an appeal from the Circuit Court, the allegations on which such motion may be grounded shall include the allegation that the verdict of the jury was against the weight of the evidence or was otherwise perverse.”
This amendment provides specifically for the manner of appeal in the case of actions which have been tried by a jury. There were doubts expressed as to what the effect of the more naked form of appeal, as given in the original draft of the Bill, would be, and it was thought well that the appeal in jury  cases should be by way of a new trial motion with the ground added, which has largely been excluded from consideration by the development of a judicial decision in recent years, namely, the ground of objection that the verdict has been against the weight of the evidence.
“So much of the buildings and premises commonly known as Dublin Castle and of the precincts thereof as shall for the time being be appropriated for the holding of any Court established under Parts I. or II. of this Act or for the use or accommodation of any judge or officer of any such Court or for the transaction of the business of any office attached to any such Court shall be deemed and is hereby declared to be situate for all purposes both in the County of the City of Dublin and in the County of Dublin.”
This amendment is necessary for technical reasons. Originally the Four Courts were built under Statute and the same applied to Green Street Courthouse. They were both deemed to be situate in the County and in the City of Dublin, and the necessity for that was for the purpose of criminal trials so that in cases arising in the County of Dublin they could be heard either at the Four Courts or in Green Street Courthouse.
“The Declaration to be taken on  appointment by every judge of the Supreme Court, the High Court and the Circuit Court and by every Justice of the District Court shall be as follows:—I do solemnly and sincerely before God promise and declare that I will duly and faithfully and to the best of my skill and power execute the office of Chief Justice of the Supreme Court (or President of the High Court, or Judge of the Supreme Court or of the High Court or of the Circuit Court or Justice of the District Court as the case may be) of Saorstát Eireann without fear or favour, affection, or ill-will towards any man, and that I will uphold the Constitution of Saorstát Eireann as by law established.
“Such declaration shall be made and subscribed by the Chief Justice in the presence of the Governor-General and by each of the other judges and justices aforesaid in the presence of the Chief Justice in open Court.
“Any judge or justice who declines or neglects to take the declaration aforesaid in the manner aforesaid shall be disqualified from entering on and shall be deemed to have vacated his office of judge or justice (as the case may be).”
This amendment is for the purpose of complying with an undertaking that the President gave to Deputy Magennis with reference to the form of declaration to be taken by judges. This amendment provides a form of declaration for all judges in all Courts and, in addition, provides for the effect of a Judge refusing or neglecting to take a declaration. Deputy Magennis suggested that the original form of declaration was not sufficiently solemn or awe-inspiring, and we have attempted to make it in a more solemn form.
Mr. JOHNSON: I desire to raise a question as to whether the form of this declaration is not in the nature of an oath and whether it is likely to raise objections from two quarters. Take the Society of Friends. Would, I ask, a Quaker be willing to accept such an oath in that form?
Mr. JOHNSON: Well, I do not know. The declaration says: “I do solemnly and sincerely before God promise and declare.” I have an opinion that that may be taken by some persons as more than a declaration, and that it may be objectionable. I do not know but I suggest that the matter is worthy of inquiring into. There are other sections of the population, very small I have no doubt, but bearing in mind the Constitution, there may possibly be atheists who are capable Judges, and the question is whether this declaration would debar a person from getting such an appointment. I think this form is different from the affirmation or declaration that is required in the courts. I just raise this question but I do not press it. I have not made any inquiries in the matter but the question is one that may arise.
ATTORNEY-GENERAL: Under the English Promissory Oaths Act there is an actual form of oath provided for judges but by other legislation that was passed in the course of time in England it was permitted to substitute other oaths in the case of forms of declaration where persons' religious belief or disbelief did not permit of their taking the oath. I believe that the existing legislation in favour of such persons would apply to this if it is considered to be an oath, but I do not think it is an oath at all.
`A person who has been a judge of the Supreme Court of Judicature in Ireland or a Recorder or County Court Judge in Ireland shall not be disqualified from being appointed a judge of the Supreme Court, the High Court, or the Circuit Court by reason of his having at the date of such appointment already attained the age prescribed by this Act as the age of retirement of the judges of  such Court, and where such person as aforesaid is appointed to be a judge of any of the Courts aforesaid after he has attained the age of retirement aforesaid, the age of retirement shall in his case be deemed to be extended to the maximum age to which it could be extended by the Executive Council under this Act.”
This amendment was introduced to give effect to an undertaking that I gave here that provision would be introduced enabling if thought fit the existing judges, even though they were over the age limit, to be appointed. The provision merely leaves it open to the Executive Council to advise the appointment should the Executive Council think fit, and I hope no one will regard it as more than keeping the matter open.
“All rules of court made under this Act shall be laid before each House of the Oireachtas within fourteen days after they are made, if the Houses of the Oireachtas be then sitting, or, if not, within fourteen days after the commencement of the next session of such Houses, and if a resolution is passed by either House within one month after the rules have been laid before such House to the effect that the same or any of them should be annulled, the rules or rule referred to in such resolution shall be null and void, without prejudice, however, to the validity of any proceedings meantime taken under the same.”
“In Section 95, page 19, to delete all from the word `shall' in line 37, to the word `Act,' in line 47 inclusive, and to insert in lieu thereof the words `or the Divisional Magistrates of the Police District of Dublin Metropolis shall continue to hold office by the same tenure as heretofore, and to discharge the duties heretofore discharged by them or duties analogous thereto. Every question which shall arise as to whether any duties are analogous to any other duties shall be determined by the Chief Justice, whose decision shall be final.' ”
It will be remembered that on the Committee Stage Deputy Duggan introduced an amendment providing for the existing staffs of the Courts and for their continuance, pending reorganisation, without prejudice to their position. This amendment brings in a group which had been omitted, unfortunately, in the original amendment, namely, the staffs of the Dublin Police Courts, and it also leaves the question of analogous duties to be determined by the Chief Justice.
Mr. DARRELL FIGGIS: Before that amendment is put I would like to raise a point, which is a purely drafting point, for the consideration of the Attorney-General. We have just passed a series of amendments, commencing with amendment 39, and all these are to come before Section 95. Now, the matter of amendment 39 seems to me to be clearly connected with the substance of Section 95, and should precede it, but I suggest that all the later amendments after 39 should follow Section 95. Because although both deal with the continuance of existing officers the later amendments deal rather with the question of procedure.
ATTORNEY-GENERAL: There is really no substantial analogy between the position of solicitors transferred to act as solicitors to the new Courts and  the position of the staffs of existing Courts kept temporarily in office.
Mr. JOHNSON: I would draw attention to the change in the form, and I would like to ask the Attorney-General if it means anything. It seems to me that while Dublin Metropolitan Police Magistrates are included, the inclusion only applies to the same tenure and duties as heretofore. Now, the Bill as it came from Committee provided for the same terms and conditions and the same salaries, and that they were to be entitled to the same pensions as if this Act had not been passed. I realise it is optional in the persons concerned to retire if the salaries are reduced or any alteration takes place in their terms, but I think some justification should be adduced for altering the provisions of the clause as it emerged from Committee.
ATTORNEY-GENERAL: I think it was considered that tenure would sufficiently cover all provisions. There is nothing sinister in the thing so far as I know. Moreover, if any substantial change were made other considerations would arise, because the Deputy will observe at the end of the Section the position under the Treaty is preserved. It was suggested that the thing as it stood might prevent promotion, and I think the expression, “by the same tenure,” taken in conjunction with the terms of the Treaty, safeguards their position.
Mr. JOHNSON: I raised the question because I noticed that the words, “by the same tenure,” were in the original, but the reference to the same terms and conditions was added to “tenure,” and I think that probably “tenure” generally covers terms and conditions. I recognise the strength of the position about officers under the Treaty, and if the Attorney-General assures us that there is no decline in the value of the conditions, then there is no objection, but I think it necessary to draw attention to the matter.
“Every person who shall at the commencement of Part I. of this Act have been sent forward for trial at Assizes or any other Commission of Oyer and Terminer and gaol delivery, and be awaiting trial, and every person who shall at the commencement of this Act have been sent forward for trial by the County Court Judge, or by any Dáil Court as defined by the Dáil Eireann Courts (Winding-up) Act, 1923 (No. 36 of 1923), on any charge excluded from the jurisdiction of the Circuit Court and be awaiting trial on such charge, shall be deemed to have been sent forward for trial by and shall be tried by the Central Criminal Court or, if so directed by the Attorney-General, a court of the High Court Circuit. Every person who shall at the commencement of Part II. of this Act have been sent forward for trial by the County Court Judge, or by any such Dáil Court as aforesaid, on any charge within the jurisdiction of the Circuit Court, and be awaiting trial, shall be deemed to have been sent forward for trial by and shall be tried by the appropriate Circuit Court.”
This amendment is to cover the case of persons who may be imprisoned or who may be on bail awaiting trial, having been before the District Court and returned for trial before the Bill comes into effect, and it provides that they are to be brought to trial in due course in the new Courts. In the case of offences within the jurisdiction of the Circuit Courts the case will be dealt with as if sent on to that Court, and the same will apply to the High Courts.
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