COURT OFFICERS BILL, 1926—SECOND STAGE.

Thursday, 11 March 1926

Dáil Éireann Debate
Vol. 14 No. 15

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MINISTER for JUSTICE (Mr. O'Higgins): Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  This is a rather long and an important Bill, and it will be necessary for me to deal at some length with the provisions so that Deputies may have as clear a picture as I can convey of the system of court administration in the future. It will be one of the last of the measures by which the administrative machinery of the courts is being built up. When the Execution of Court Orders Bill, this Bill and a Jurors Bill are through, the administrative machinery of the courts will be complete. This Bill deals mainly with the question of court staffs, from the Supreme Court down to the District Court. There are, however, some other matters of considerable importance, relating to the administrative side of the courts, which are also dealt with, and I think it may be convenient, before moving to the question of court staffs proper, if I deal with some of these relatively extraneous matters. There are, for instance, covered by the Bill such matters as court fees, the question of the Fines and Fees Fund, the question of the District Probate Registries, summons servers, the abolition of the office of high sheriff, and the provision for the gradual disappearance, rather than the abolition, of the office of under-sheriff.

Dealing first with the question of court fees, which Deputies will find covered in Section 48, the proposal is that these should be fixed by the Minister for Justice, with the sanction of the Minister for Finance. That is, of course, a change. The present position is that these fees are fixed by the rule-making authorities, that is, in practice by judges and professional men—solicitors and barristers. I hold the view that the question of the extent to which litigants should pay for the cost to the State of administering justice, which [1402] necessarily involves the extent to which that cost is to fall on the general taxpayer rather than on the litigants themselves, is not a judicial or a legal one, and it should lie with Executive Ministers, who will have to answer any complaints that may be made on the subject.

In fixing these fees, of course, the general principle on which we would propose to base our charges is that the administration of justice in civil matters should, as nearly as possible, pay for itself, but that in criminal matters the cost should be borne by the State. Once that principle is established the only difficulty is to apportion the fees accordingly, and that is really a matter for experienced officials rather than for judges or professional men. The opinions, of course, of judges and of practising lawyers, whether barristers or solicitors, would be of value in a matter of the kind, but there would be no difficulty in practice in securing their opinions when the question of the final fixing of fees comes for review and decision. That change, therefore, is definitely proposed by the Bill.

Sections 42 and 43 bear on the Fines and Fees Fund. The present law on the matter is that in general all fines and District Court fees go into a fund called the Fines and Fees Fund, which is the primary source for the payment of the salaries of District Court clerks and the pensions of the retired Petty Sessions clerks. It is not a sufficient source; it has to be supplemented by a Vote of the Dáil. The Fines and Fees Fund itself does not produce more than £25,000 per annum, whereas the salaries of the existing District Court clerks amount to about £30,000 per annum. Pensions of retired Petty Sessions clerks and retired headquarter officers amount to over £25,000, and salaries of existing headquarter staff, and considerable incidental expenses, bring the total cost of the District Court Clerks' Department, including all officers, past and present, to about £65,000. This £65,000 does not include the District Court clerks in the Dublin Metropolitan area, who are paid out of voted monies. The position, therefore, is that every year it is necessary to find approximately £40,000, over and above the income of the Fines and Fees Fund, [1403] to meet the expenses of the District Court clerks and their Department. In the past that additional annual sum had been obtained out of the annual yield of Dog Duty, but Dog Duty, as some Deputies will remember, has since the 1st January last become an Excise Duty, and the enactment under which it was formerly available to supplement the Fines and Fees Fund has been repealed, so that in future, if the Fines and Fees Fund were retained we should be in the position of having to look to the Dáil to vote an annual sum of about £40,000 to supplement the Fines and Fees Fund.

Under the circumstances it has been decided to abolish this special fund altogether, to pay the fines and fees into the general Exchequer, and to ask the Dáil to vote annually the necessary money for the pensions, salaries, and expenses of district court clerks, in the same way as the Dáil votes the money for the pensions, salaries and expenses of the other court officers. Perhaps I spoke rather loosely when I referred to the pensions, salaries and other expenses. What I mean is that the pensions of the petty sessions clerks are borne out of this Vote, and it is in that connection that I spoke of pensions. We propose to enact that in future all court fees and all fines shall go into the Exchequer direct instead of into a fund, and it will be observed that there is a provision for the making of orders under which certain classes of fines may be paid, not into the Exchequer, but in other directions to be specified in the order. The reason for that is that at present under various statutes there are certain persons and bodies having a right to certain fines or portions of certain fines. Local authorities, the Gárda Síochána Reward Fund, and Fishery Conservators are just a few examples of that, and I have been informed that there is a regular entanglement, or network, of provisions of that kind which it would be impossible for any person to expound clearly. The law on this subject ought to be so simple and so clear that every district court clerk in the country might be expected to tell off the list of all the classes of fines in which vested interests of that kind exist.

[1404] It is not at all clear at this stage that all these various vested interests in fines, whatever their origin and however justified they may have been in their origin, are now justified at all. You have rights of that kind created by statute 50 or 60 years ago, but the circumstances have altered so much in the meantime that there seems no longer any justification for the private right. Therefore, our object is, firstly, to clear up the existing confusion as to who is entitled to these rights, irrespective of the merits, and, secondly, to eliminate claims which have ceased to be justifiable in the existing circumstances or claims which are so insignificant in amount as not to deserve a separate existence. Such vested interests as can be defended will be respected, but we want power to abolish and power to retain where retention seems desirable. The elimination of certain claims, certain vested interests in fines of a particular kind, may sound a little as if it were confiscation, but Deputies will advert to the fact that in a great many cases, perhaps the majority of cases, the vested interests lie in some one Government department or another. In most of these cases, therefore, it is simply a question of bookkeeping as between one branch of a department of State and another. As it is, it simply means a lot of unnecessary administrative work.

In Section 47 Deputies will find the question of district probate registries dealt with. Here again, it is rather an administrative discretion that is sought than a definite cast-iron provision. We hold the view that it may be that these local probate registries are not necessary, and perhaps even are not justifiable. The position, at the moment, is that if a person domiciled anywhere in Saorstát Eireann dies, probate of the will. if there is a will, or a grant of administration intestate if there is no will, can be had from the principal probate registry in Dublin. In addition, there are certain district probate registries. There is, for instance, a district probate registry at Cork, Limerick, Tuam, Ballina, Waterford, Cavan, Kilkenny, and Mullingar. Each of these district probate registries has an area assigned to it, a definite territorial area. If a [1405] person domiciled in one of these areas dies then a grant may be extracted either in the local registry or in the principal registry in Dublin, according to the applicant's wish. The proportions of the thing are that not quite one-half of the business is done direct with the central probate registry in Dublin.

The following are the proportions in which grants are issued from the district probate registries: Cork, about 1,200 a year; Limerick, about 1,000; Tuam, 800; Ballina, 800; Waterford, 700; Cavan, 650; Kilkenny, 450; and Mullingar, about 400, making a total of 6,000 as against about 5,000 issued annually from the central probate registry in Dublin. There are some differences between the practice and procedure at the principal probate registry and the local registries. For instance, the central registry in Dublin will not issue a grant unless the applicant, or his solicitor, attends in person at the registry. It is obviously more satisfactory for a solicitor in Cork to attend at the registry there than to pay a town agent to attend the principal registry in Dublin. District registrars are often prepared to do business by correspondence. The personal attendance of the solicitor or his agent is not required. In such a case, for instance, a Tralee solicitor could get a grant at the Cork or Limerick district registries without leaving his office and without employing an agent, whereas, if he applied to the principal registry he would have to come to Dublin or pay a solicitor to act in Dublin for him.

It may be true that the staffs in the district registries are prepared to do just a little more for customers, if I may use the word customer, than the staff in the principal registry in Dublin. The explanation of that may lie in the fact, and I think it is a fact, that their remuneration, to some extent at any rate, depends on the volume of business that passes through their particular registry. I have been told, in cases where a paper might be returned by the principal registry in Dublin for one slight correction or another, that the staff in the local registries would be prepared to make the alteration themselves. But apart from considerations of that kind, which are accidental and non-essential, the district probate [1406] registry causes a certain amount of delay and confusion rather than speed and certainty. Every application to the district registry has to come to the principal registry before it is passed and, of course, the reason for that is to ensure that there is not an application in the principal registry or a caveat against probate, with the result that the official work of indexing and calendaring is doubled in that way.

We are particularly anxious not to take any steps that would result in any serious inconvenience to litigants or solicitors in the country. But you get the measure of the thing when you remember that there was, and is, I think, a local probate registry in Derry in which, prior to the Treaty and the establishment of the State, the county of Donegal was included. Since the establishment of the State the probate work of Donegal has, of course, no longer been transacted in the district probate registry at Derry. It has had to be transacted entirely with the principal probate registry in Dublin, and I have heard no suggestion from any quarter that that has caused inconvenience. It has never been represented to us, for instance, that Donegal, owing to the partition, ought to be assigned to some other local probate registry.

Therefore, what is sought in the Bill is not so much specific provision to close down these local registries but the permissive power to do so if, on examination and as a result of administrative experience, it is considered advisable. I do not put the thing higher than that. I am not asking that the Dáil should by statute abolish or close these local probate registries, but that we should have administrative power to close them if we are satisfied that that can be done without causing any real inconvenience to anybody, either to an ordinary citizen or a practising solicitor. We come now to the question of summons servers under Section 38. At present there is a distinction between the manner in which the writs of the different courts may be served. High Court writs may be served by anybody, and Circuit Court processes are served by civil bill officers, who are paid about £20 per annum by the State [1407] and who get fees in connection with each service. District Court summonses are served by summons servers, and it is proposed to establish uniformity in the way in which summonses and writs of the various courts are served by establishing one single corps of summons servers.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Will they be armed?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  No, we hope it will not be necessary. One matter lying outside the general question of courts' staffs is the position of high sheriff and under-sheriff. In an Act passed in 1920, the Sheriffs (Ireland) Act, the power of the high sheriff was reduced to two simple duties. He had the duty of summoning grand juries and the duty of attending in a ceremonial way on the High Court Judge when going on Assize. That was the position prior to the passing of our Courts of Justice Act. Since the passing of our Act the duty of the high sheriff is to summon a grand jury which does not exist and to wait upon a judge who does not go out on Assize. There is, in fact, no duty attaching to the office now. Since the passing of the Courts of Justice Act it has simply been an empty title without any single duty attaching to it. Deputies, therefore, will not rise up in revolt at the proposal to abolish the office of high sheriff.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  Are there no statutory obligations imposed on the sheriff?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  None on the high sheriff. He has no duties or powers. He has simply a title and we beg leave to withdraw it. With regard to the under-sheriff, the position, of course, is different, and the proposal in the Bill is very different. It is not proposed to abolish the office of the under-sheriff. It is not proposed to interfere in the slightest degree with any existing under-sheriff, but there is a strong opinion in my Department, shared by many practising solicitors with whom we have discussed the question, that it is possible to provide for the gradual disappearance of the under-sheriffs as such, and under the new system to [1408] swing into the new office of county registrar the work of the under-sheriff as it at present exists. The under-sheriff, as Deputies are aware, does not actually make seizures himself. He supervises the work of the bailiffs and settles such technical and legal questions as may arise in connection with that work, questions, for instance, as the priority between this decree and that decree against the same person. These questions are settled by the under-sheriff and there is need that the work of these officers, whether you call them by their old title of bailiffs or by their new title of court messengers, be supervised by a person with legal knowledge who can dispose of legal and technical questions that may arise.

We consider that that work can be adequately done by the county registrar and disposed of in his office, and we ask for power to make the arrangement that when an existing under-sheriff dies, resigns, or retires from office from any cause, the work may devolve upon the county registrar and may be disposed of in his office. It is not, when Deputies reflect on it, a revolutionary proposal. We believe that it is a sound administrative proposal. There is this further advantage; we believe that with the elimination of the under-sheriffs there will be room for the payment of some higher remuneration to the class of person engaged on the actual work of making seizures, and we would hope to be able to secure the services of some better type of men than those who performed that work in the past. I believe that the supervision by the county registrar will be adequate and that legal and technical questions that may arise can be disposed of by him, and that it will not constitute an undue addition to the other work of his office. I hold that the change is a sound administrative one. It has, at any rate, been closely discussed and considered by people competent to form a sound judgment on it, and our decision has been arrived at after consultation with such people.

Mr. CORISH: Information on Richard Corish  Zoom on Richard Corish  Upon whom will devolve the work which the under-sheriff has hitherto carried out in connection with the conduct of Parliamentary [1409] elections—will that job fall to the county registrar?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Perhaps not directly or personally, but it would be easy to arrange that a deputy would act for him as returning officer, while the actual responsibility might rest on the county registrar.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  According to the section, all the rights and duties of the under-sheriff are to go to the county registrar.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Yes, but there may be delegation. Section 45 provides, in connection with this change, that the under-sheriff may be relieved of one duty which at present attaches to him, and which he probably considers the most unpleasant, namely, the carrying out of the death sentence. It is not considered necessary to carry into the new system the position which places the legal responsibility for seeing that the capital sentence was carried out on the under-sheriff of the county in which the offence occurred. The governor of the prison in which the man is detained and from which he is brought to trial can bear that responsibility. We see no reason for continuing to place that burden on the other officer. That brings me to the question of courts staffs proper. I have dealt up to the present with certain matters that were, perhaps, a little extraneous to the main object of the Bill, which is to define the position of the staffs of the courts under the new system. We might start with the district courts staffs and work up to the hierarchy of the courts, the staffs of the Supreme Court.

The District Court is a comparatively simple matter, and the Bill proposes, merely, to give permanence to the existing temporary arrangements. The position in Dublin and Cork is that there are regular District Court offices with a chief clerk and a staff working under him. There are about ten such officers in Dublin, and, I think, three in the Cork office. The Dublin office is one of old standing. It is run on Civil Service lines. It is staffed by open competitive examination and was not interfered with when the old petty sessions clerks were being disbanded [1410] throughout the rest of the country. The remarks, therefore, which I have to make under the head of district court clerks do not refer to the Dublin office. At Waterford there is a full-time clerk and assistant, but these two men are also responsible for some courts outside the city of Waterford. In no other place than Dublin, Cork, and Waterford does the staff in any one District Court consist of more than one man. On the contrary, most of the District Court clerks serve the court at more than one place. The volume of work of these clerks varies enormously, as Deputies know. Some clerks are whole-time officers—and busy whole-time officers at that—working as many as seven or more courts. There are other clerks with only one court, sitting monthly, and their whole yearly work, if brought together, would not take an efficient clerk a month to perform. The salary, like the work, naturally varies a great deal—from a maximum of £600, which is paid in one case only, in Dublin, inclusive of expenses and bonus, and corresponding roughly to an ordinary Civil Service salary of from £300 to £350, to a salary as small as £40 a year. Excluding the staff in Dublin and one officer of the staff in Cork, all the other District Court clerks, to the number of a little over 160, were appointed since the establishment of the State. They replaced the petty sessions clerks who were disbanded en masse in December, 1922. The petty sessions clerks, with the exception of possibly half a dozen, were not re-employed. All the other appointees were new men. The majority of them had been connected with the Dáil Eireann Courts, or, if not with the Dáil Eireann Courts, then with some other aspect of the movement which resulted in the establishment of the State. When these men were appointed, the Civil Service Regulation Act was not in existence, and about 150 of them were appointed by me on my own responsibility, naturally, not without advice and not without suggestion. I got very strong suggestions in some cases and some appointments were made contrary to suggestions which I received. In the circumstances, these appointments were, of course, temporary. There was no permanency of [1411] tenure and, of course, no question of pension rights. I want the Dáil just to consider for a moment that the running of the District Courts, with a staff entirely untrained and recruited in that way and in those circumstances, was not an easy proposition for the District Justices or for my own Department; on the whole these men may be said to have justified their selection. There have been about a dozen dismissals and, perhaps, from a dozen to a score more are in the last stages of probation. We are hoping against hope that with patience on the side of the Department and a considerable effort on the side of the clerks themselves, they may be brought over the border line of efficiency which, at present, they have not touched. It has been necessary to nurse certain weaklings amongst the flock in that way, and to exercise a patience that is not usual in the public service, that should not be usual in the public service, and that is only justified by the special circumstances and the conditions which led to the appointment of those men.

Mr. GOOD: Information on John Good  Zoom on John Good  Would the Minister say how he has helped the lazy ones on?

Mr. CORISH: Information on Richard Corish  Zoom on Richard Corish  He has helped them off.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  There have been, as I say, a dozen dismissals. I do not want Deputies to draw the conclusion that there has been any general failure on the part of the District Court clerks, because the position is rather the contrary. The great majority of them fitted into their new positions and duties and responsibilities with really extraordinary rapidity. Their work is somewhat technical. It takes a degree of intelligence to master it and the majority have mastered it quite well. The position, for some time past, is that vacancies, arising in these District Court clerkships, have been filled by arrangement with the Civil Service Commissioners. The vacancy is advertised. It is a great relief to me to have the positions filled in that way. All applicants are put through a qualifying examination and, from those who qualify, the Civil Service Commissioners, with the advice of the Selection Board, pick out the most suitable men. [1412] The present Bill makes no change in that system. There are about 150 of those clerks and the average salary is £200 per annum inclusive.

Because I feel it in my bones that much will be said on the question of the desirability of making those men permanent and pensionable, it may be well to say a word about it now. The Bill does not do that. On the other hand, the Bill does not preclude the possibility of whole-time clerks being established and becoming, in that way, pensionable. It is a very difficult patchwork kind of position and I think that the Deputy who simply says, in an offhand way, that it is desirable to make District Court clerks pensionable, is not envisaging the position as it exists. The great majority of those men are part-time officers who have really very little work to do. They have, perhaps, a court a month, or possibly even a court a fortnight, and it begins and ends at that. The suggestion that pensions should be forthcoming for men who are employed on those terms is contrary to sound administrative principles, as recognised for many a long day in the Civil Service—the principle that only full-time officers should be pensionable. I shall, no doubt, have to deal with amendments on the Committee Stage, and the matter can be more fully discussed, but I want to throw out the warning now to Deputies that they ought not to be stampeded by the view that there is a strong direct case for making District Court clerks pensionable officers. There may be a sound case for making certain District Court clerks established officers. That is quite another matter.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  Does the Minister mean whole-time district court clerks?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Yes. At any rate, that possibility is not precluded by the Bill. The Bill rather leaves the matter at large, and that is the way I should wish to leave it.

Passing from the district court to the circuit court, the circuit court is being run at present, and has been run since its establishment, by the old county court machinery; in other words, by [1413] the clerk of the Crown and Peace. There are twenty-seven clerks of the Crown and Peace—one for each of the twenty-six counties, except Cork, which has two, as Cork was formerly divided for county purposes into two parts, the West Riding and East Riding, the latter including the city of Cork. These officers were assisted in two ways. There was an officer called the registrar to the civil bill court, who was expected to do some of the work which would otherwise have fallen on the clerk of the Crown and Peace, and the clerk of the Crown and Peace received from the State an allowance towards the cost of clerical assistance in his office. The registrar to the civil bill court was appointed by the county court judge and was not infrequently a friend or relative of that judge. His duties were never very well defined. Some judges and some clerks of the Crown and Peace expected the registrar to do work, and some registrars did work. But that was the exception rather than the rule. I am not trying to overpaint the picture or simply to exaggerate for the sake of discrediting the system that has gone. I am trying to state the facts, so that Deputies may realise what the position was. The remuneration of the registrar was not very high, but it was, perhaps, high in proportion to the work done. It was two guineas per day. The registrar went out of office on the death or resignation of the judge to whom he was attached. He had no pensionable rights. The Judiciary Committee, on whose report our present court system is founded, recommended the abolition of the office of registrar to the civil bill court, and it is proposed in the present Bill to amalgamate the duties of that office with those of the new office of county registrar.

As regards the second kind of assistance which the clerk of the Crown and Peace had in the discharge of his duty, it was a money allowance towards the cost of his staff. This allowance varied from £1,100 per annum downwards and it varied a great deal between one county and another. In addition to running the County Courts office, the clerk of the Crown and Peace acted also as registration officer in connection with the lists of parliamentary and local [1414] government voters, the compilation of the jurors' lists and the jurors' book, and he was the local registration of title officer under the Local Registration of Title Act, 1891. The clerk of the Crown and Peace was appointed by the Lord Lieutenant, and might be removed by the Lord Chancellor for misconduct or incapacity. If not removed, he remained in office until he died or voluntarily resigned. The statutory qualification was that he should be a solicitor of six years' standing. The emoluments of a clerk of the Crown and Peace were made up partly of salary and partly of fees. He received a salary as clerk of the Crown and Peace, a separate salary as registration officer, fees for compiling the franchise lists and a third salary as local registrar of title. Latterly he received cost of living bonus on these salaries. The amount of the bonus was, in most cases, relatively small, as it is in the case of all the larger Civil Service salaries. The salaries varied very much as between the smallest and the biggest county and so did the fees. The fees also varied a good deal as between county and county. It is difficult to give exact figures in connection with fees received by the clerks of the Crown and Peace, but I am probably right in saying that the worst paid clerk of the Crown and Peace had a net income of over £1,000, and at least three of the best paid clerks had a gross income of over £2,000. There is one clerk whose income probably exceded £2,300. It is proposed to substitute for the clerk of the Crown and Peace a new officer to be called the county registrar, who will do, for a fixed salary, all the work of the old officer and any other work which may, from time to time, be thrown on him. He will be appointed and, if necessary, removed by the Executive Council. He will automatically vacate office at the age of 65 years, but power is sought by the Bill to extend service, in individual cases, to a maximum of 68 years. Permissive elasticity, to the extent of three years, is asked for under the Bill. That can be discussed later. The salaries will, like all Civil Service salaries, be fixed by the head of the Department—that is, in the present case, by the Minister for Justice—with [1415] the sanction of the Minister for Finance. The salaries which we contemplate paying in the regular way will vary. At the present cost of living, they will be from about £900 inclusive to £1,200 inclusive, according to the size of the county. But in the case of an existing clerk of the Crown and Peace, who is offered and who accepts re-employment as county registrar, we will not, in general, reduce the existing salary. I say “in general” because some of their salaries are so high that we would not be prepared to allow them to stand. The figure I have in mind as a maximum is £1,200 per annum, plus bonus. That, at the present rate, would be about £1,450, which would be the highest salary which we would pay to any county registrar, even as an inducement to a clerk of the Crown and Peace to continue on in our service under the new system.

AN LEAS-CHEANN COMHAIRLE: Information on Pádraic Ó Maille  Zoom on Pádraic Ó Maille  took the Chair.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It will be clear to Deputies, therefore, that I have in mind two sums, a maximum of £1,200 inclusive, as the ordinary salary to be paid to the county registrar, and a maximum of £1,200, plus bonus, which, at the present rate, would amount to £1,450 to an existing clerk of the Crown and Peace who would wish to remain on and serve under the new system. The county registrar will surrender to the Exchequer all fees which represent additional emolument to himself or to his staff. On the other hand we will relieve the county registrar of all financial responsibility as regards the staff.

As regards existing employees of clerks of the Crown and Peace, these men are part, and the most serious part, of the problem of the temporary staff in court offices. Many of them have given long and faithful service. Many of them have had a great deal of heavy work to do, and their claim to be established and to be given pensionable rights is difficult to resist. Frequently men employed in that way in technical temporary capacities in the offices of the clerks of the Crown and Peace have done rather heavy clerical work at a very low rate of remuneration. So as [1416] to avoid raising any excessive hopes I would like to say that pensionable rights are very rarely given retrospectively, and that the Minister for Finance would not contemplate embarking on such a course at this particular time, and in our present condition. Men similarly situated in England have recently been admitted to the pensionable service. However, they have not been admitted retrospectively or, if there was retrospection it was only to the extent of one or two years. A date is mentioned in this Bill—1st January, 1924—as the earliest possible date from which pensionable service was to take effect. That is the furthest we would be prepared to allow if the men were placed on a pensionable basis. That finishes consideration of the staff of the circuit courts.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  The registrar is to take over the duties of the sub-sheriff and under sub-section (2) of Section 34 he is really made a sort of judge in certain cases. Is that the intention?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Perhaps that is more a matter for Committee Stage. These functions under sub-section (2) of Section 34 are minor and ancillary functions. If I devoted more time to it I could show the Deputy that it is not a very substantial jurisdiction. It is simply in minor matters that might properly be disposed of in that way.

Mr. CORISH: Information on Richard Corish  Zoom on Richard Corish  Can the Minister say at this stage what is the position of the recent temporary appointments of stenographers? Does the Bill affect their position?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  In the form in which the Deputy puts it the answer is “yes.” Section 37 has a bearing on the general staff of the Circuit Courts. It reads:—

There shall be employed, in every Circuit Court office established under this Act such and so many officers, clerks, messengers, and servants as the Minister shall, with the sanction of the Minister for Finance, from time to time determine, and all such officers, clerks, messengers, and servants shall hold office on such terms and conditions as the Minister for Finance shall prescribe and shall be [1417] paid out of moneys to be provided by the Oireachtas such salaries as the Minister shall, with the sanction of the Minister for Finance, direct.

That is about as much as there is in the Bill bearing on that point. Coming to the High Court staff, I would like it to be understood that what I have to say in this connection I confine to the permanent or pensionable staff. There are in the High Court a considerable number of temporary employees, to some of whom the remarks I have made in connection with the staffs in the offices of the Clerks of the Crown and Peace apply equally. In fact at the time of the change of Government I find that the British Treasury was on the point of establishing some members of the staff attached to the office of the Official Assignee in Bankruptcy and in the High Courts.

As regards the permanent staff, the position, broadly, is that almost all the existing officers are not, strictly speaking, officers of our High Court of Justice at all. They are officers appointed definitely on the definite tenure of the Supreme Court of Judicature which was abolished by our Courts of Justice Act, 1924. However, there was a section in the Courts of Justice Act, Section 102, which provided that all registrars, clerks and other officers attached to the then Supreme Court of Judicature or to the Lord Chief Justice were to continue to hold office by the same tenure as heretofore and to discharge the duties heretofore discharged by them, or duties analogous thereto, unless and until otherwise determined by the Oireachtas. That arrangement, while obviously open to objection, was an arrangement not intended to last for a considerable length of time, and has worked well in practice during the 18 months that have passed since the abolition of the old Supreme Court. Naturally, it is not a position that can go on indefinitely, and the officers themselves will be anxious to know where they stand and what their position is to be definitely under the new system. There was a peculiarity with regard to the removal of some of these officers. They could only be removed for stated reasons with the consent of the Lord Chancellor. There was no [1418] age limit. Some of the existing officers are over 65, some considerably over that age. That is not a state of affairs we are anxious to see continued in the public service.

It must be remembered that the present staff of the High Courts is a survival of the time when every judge of the Supreme Court was for every purpose a court to himself. The courts were run in water-tight compartments, and the officers were appointed for certain definite purposes, and in connection with certain definite courts only. There was no flexibility or interchangeability in the matter of staff. Again, I think the present staff is admittedly extravagant. At the moment it is not in the total so extravagant as it was some years ago, because, if we have not been able to do anything else, we have at least been able to control new appointments and promotions, but, even as it is, there are about twelve posts the holders of which draw £1,000 or over a year, plus bonus. Again, the staffing was based on the idea that every post which was worth having was to be at the giving of the judge, and while there have been several gratifying exceptions to the rule, the position really was that any post worth £500 a year or over it, and sometimes even lesser posts, were filled when they became vacant by judicial patronage, and very often by the appointment of a son, nephew or close relative or friend of the judge in whom the power of appointment was vested. There, again, I am not endeavouring simply in any spirit of condemnation to draw a caricature, but I am anxious to state the facts, and these are notoriously the facts with regard to the staffing of the High Court in the past.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Would the Minister say whether the new officers who are to be appointed by the Executive Council are to be appointed by means of the Civil Service Commission?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Yes, by the Civil Service Commission, with some exceptions. There will be the master of the central court office, and taxing masters. These offices will be filled by the Executive Council. They will not be filled in the ordinary way by Civil Service [1419] promotion, but by persons brought in from outside.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Such offices as these would be the counterpart of the patronage by judges in the past. It was the patronage of the judges in the past, and now it is the patronage of the Executive Council.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It is considered not only desirable but necessary to make a change in that system of judicial patronage. Sometimes patronage is necessary. The aim here has been to reduce the patronage to the irreducible minimum, but it will be agreed where it is to be exercised it should be responsible patronage, it should be a patronage exercised by people who have responsibility, who are subject to criticism, and who can be called upon to answer for their deeds or misdeeds in the matter of the exercise of their patronage. Out of all the posts in the new High Court we see only two which must necessarily be filled by the appointment of persons from outside the court staff proper. These are the posts of master and taxing master, and even in these two cases it might from time to time be found possible to promote a member of the ordinary court staff, but we thought it better to draw the line firmly and definitely and to say the master and the taxing master shall be appointed from outside from the profession of barrister or solicitor respectively, and in no other case shall anyone be brought in from outside over the heads of the regular staff. I think that is the proper administrative position. We are confirmed in that view by a report passed over to us which was made by the British Treasury experts in 1921 on the staffing of the High Court. I quoted from it here on one occasion, and the censures it contained on the High Court staff were very stringent indeed.

It is hardly necessary to point out that the Bill gives to the ordinary officer of the court a clear line of promotion which he never had before, and we consider that that important prospect will more than compensate for the inevitable reduction in the number and in the value of the higher posts. [1420] There will, of course, be such a reduction. Again, we have decided that the staff of the High Court shall be employed on the same conditions and terms as any other department in the State. There is no reason, so far as we can see, why a clerk of the High Court, who enters by open competition and receives a salary from the State, should have any privileges over and above those common to the Civil Service generally. There is certainly no reason why he should remain in office indefinitely, irrespective of age or efficiency, and there is no reason why he should not do a full day's work if it is there for him to do. At present he cannot be obliged to work before the hour of 10.30 a.m. or after 4 p.m. On Saturday the working hours are from 10.30 to 12 o'clock—that is, he works approximately 30 hours a week except during the long vacation, when he does not work at all.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Will the Minister say whether these officers will be transferable to any other department of State.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Existing officers will not.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  I mean will any officers appointed to the courts under this Bill be interchangeable with other departments of State, or will they be strictly secured to the court service?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  The fact is that, theoretically, leaving out of consideration the existing staff, and dealing with men simply recruited in the future, they would be part of the Civil Service of the State, and technically it might be that they could be transferred from the department of the court to another department. I think in practice the courts would tend to remain a separate and water-tight branch of the Civil Service. I suggest that during the long vacation there was, in fact, no work, and that is a matter of three months. When you contrast that with the position of the ordinary civil servant it will be seen that there is a very considerable difference. The ordinary civil servant works a minimum of 41 hours a week for eleven months in the year, as against 30 hours in the week for nine months in the year in the case [1421] of the courts. But apart from the question of tenure, salary and the hours of the individual clerk, it is proposed to reconstruct the High Court offices on the principle of creating by statute as few separae offices as possible. Certain offices must so clearly have separate existence, and must so necessarily be referred to by name in the Rules of Court, that we have given them names of separate statutory origin. The offices in question are the master's office, the taxing master's office, the office of accounts and inquiries, the probate office, the bankruptcy office, and the accountant's office.

There are six statutory offices given a separate existence, and a separate name by the Bill. Every one of these six has a clear-cut and homogeneous mass of work to do. Everything else that is required to be done, from the issuing of the initiating writ to the marking of the judgment will be done in the only other office we propose to create, and which might be called the residuary office, namely, the central office. To anyone who is at all familiar with high court procedure, the names of these offices will, of course, explain themselves, and a section will be found in the Bill dealing with each office, and prescribing the work that will be performed in each set of offices. Deputies who are not familiar with legal procedure will probably agree that a detailed description of the technical duties of each office is scarcely possible or desirable at this stage of the Bill.

Probate and bankruptcy procedure are probably self-explanatory. The Taxing Office is, of course, the office where the costs which are to be allowed are settled and the persons who perform that particular work must necessarily be persons who have had a good practice and a good standing as solicitors. No other men can really be expected to know the intricacies of cost-drawing or to have the necessary experience and authority to tell a fellow-solicitor, if and when it is necessary, that his costs are excessive and must be reduced. I may say that there are at present three taxing masters. That was the taxing staff for the whole of Ireland in the past, and two will probably, almost certainly, suffice for the area of the Free State in future.

[1422] The Accounts and Inquiries Office is a new name. It represents merely the amalgamation of the two existing offices of the two chief clerks in Chancery and also the rather small volume of business of the same character remaining in the old Land Judges' office. The object of this particular office is simple enough. Speaking broadly, the business that comes before the High Court might be divided into two main branches. A.B. claims that C.D. owes him a certain sum on a contract, for damages arising out of an accident, or for injury to reputation by slander. The questions to be resolved by the court are really only two. One question would be: Is the claim good at all; is it sound, and, if so, what is the amount to be assessed? In that class of case there is a short trial of the issue and the matter ends. Then there is a different class of business. A.B. asks the Court to control, investigate and clear up a complicated set of transactions, such as the winding-up of a company or the administration of a deceased person's property. Inquiries have to be made; advertisements have to be inserted; creditors' claims have to be examined; debtors have to be followed up and assets realised. The matter might take six years to clear up and difficult points of law might crop up from time to time in the process. It is that kind of case which the Accounts and Inquiries Office will deal with under the new system. The Accountant's Office is the office which takes charge of the securities and moneys which are lodged with the court, and it is the office which makes payments as ordered by the court.

Lastly, there is the office of the master, the most important office of the High Court system. It is proposed to give the master a dual capacity. He will, to a certain limited extent, be a kind of minor judge who will save the time of the High Court and the parties by deciding matters which, while too important to be dealt with by officials pure and simple, are yet of a more or less routine nature and do not call for a special sitting of the High Court. There will, of course, be an appeal from any such decision of the master. He will in no matter, however unimportant, [1423] be the final authority. That is one capacity of the master—the quasi-judicial capacity. On the administrative side the Master will be the administrative head of the Central Office.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  Where is the Central Office to be situated? The Bill does not state here where it will be situated.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  The Bill, of course, does not touch, in connection with any office, the question of its location, but it will be——

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  In Dublin.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It will be, of course, in Dublin and will be convenient to the courts.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  It is your view that it should be in Dublin, but there is nothing to prevent a proposal that it should be in Cork or Limerick.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Nothing except our horse-sense. I was speaking of the dual capacity of the master of the Central Office. He will have certain minor, quasi-judicial functions and he will also have very considerable administrative responsibility. As the head and the over-riding authority in the Central Office, subject only to the Minister, he will be the authority on matters of staff and establishment in every High Court office. Through that officer we would look to establish a certain uniformity of procedure and outlook in the separate offices in the courts. He will be there to see that the work goes on smoothly and diligently and that a good general tone, a business-like and industrious atmosphere and a general harmony in methods, exist throughout the system. If there are suggestions that the clerks in any one office are notoriously having an easier time than the clerks in other offices, it will be his duty to remove any inequalities of that kind and to deal generally with the question of the proper apportionment of the staff and the proper assignment of work amongst the staff. If there are complaints from the public, complaints of inconvenience or discourtesy in connection with the business of the courts, it would be for the [1424] master of the Central Office to inquire into such complaints, to investigate them and, if possible, to deal with them himself. If they are of sufficient proportions to require it, he will report to the Minister for Justice on any such matters.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  What salary is it contemplated this Master of everything shall have?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It is not fixed by the Bill, and no decision has been come to.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  He deserves a good salary.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  No doubt it will be said in criticism that we are putting two entirely different duties, two very dissimilar duties, on the same man. First, we are asking him to perform, to some extent at any rate, the duties of a judge, and then we are looking to him to perform the duties of an administrative officer. That is quite true and we recognise it fully. It could be defended, if we wish to take that line of defence, by a precedent. The Master of the King's Bench in the past and the judges themselves had, to some extent, that dual position. There is, however, another, and a better defence, and it is that the semi-judicial duties of the Master will not, it is anticipated, occupy him for more than two hours a day, and we cannot, at the very time that we are abandoning one system largely because of its wastefulness, and largely because of its cost, allow under the now system such an anomaly as that of the highest paid officer in the court going home every day at lunch-time because there is nothing more for him to do. Consequently, we have taken steps to see that there will be something for him to do after lunch.

There is another consideration. No officer, except this officer, could properly be put into a position where he might be called upon to censure any principal officer in the court or any particular officer amongst the courts staff. Thirdly, we are following in this matter the recommendations of the Judiciary Committee's report, which [1425] Deputies, will remember, was an unanimous report from men who, certainly, ought to be able to form a sound judgment upon matters of that kind.

We pass now to the Supreme Court— the court of appeal. Staffing, so far as that court is concerned, is a very simple matter. It is eminently a court in which practically all the work is done by the judges themselves. It requires simply an officer of some standing to act as its registrar, and provision is made for that in the Bill. It will need very little other staff. The same officer who will act as registrar to the Supreme Court, as such, will act as registrar to the Court of Criminal Appeal. Lastly we come to the staff, which the Chief Justice will require, in the exercise of jurisdiction transferred to him by Section 19 of the Courts of Justice Act of 1924. That jurisdiction may be described as, firstly, the wardship of lunatics; secondly, the wardship of minors; thirdly, the appointment and disciplinary control of solicitors, and, fourthly, the appointment of commissioners for oaths. At present, for the purposes of the first of those—the wardship of lunatics—there is a separate office, and, also, there is a separate office for number two, the wardship of minors. Each of these—one and two, lunatics and minors, represent a steady flow of work. As regards the other items—disciplinary control of solicitors and appointment of commissioners for oaths, the work is, of course, not heavy. It is done at present under what used to be the Crown and Hanaper Office, one or two fairly junior officials doing all of it except what falls to the personal discretion and authority of the Chief Justice himself.

We have decided to create a new officer, to be known as the Registrar to the Chief Justice, in whose office all four classes of work will be done; that is, the work falling under each of the four heads to which I refer will be done in the office of this new official, who will be known as Registrar to the Chief Justice.

Now, before I conclude, I would like to say a few general words as to the position of the existing officials, in the High Court, and the Supreme Court, [1426] under the provisions and operation of this Bill. There is no question at all as to what the legal position will be. All the former High Court officers under this Bill will be legally, and technically, discharged from office within the meaning of Article 10 of the Treaty as soon as Part I. of this Bill comes into operation. That is, as I say, the legal and technical position, and nothing that we can do or say can prevent every one of those officers becoming entitled to the compensation which Article 10 of the Treaty guarantees. That is the legal aspect. These officers are discharged, and their right to compensation accrues automatically. Now, in contrast to that legal and technical position, I would like to speak of the actual position. The actual position is, that it is not desired to discharge from office a single one of these men, save those who are over the retiring age, which it is proposed to fix by the Bill, or who are otherwise unfit for their work. And with these exceptions we offer to every one of those officers re-employment under the new system and we guarantee that their salaries will not be reduced even where we think, as we do think in certain cases, that they are too high.

We think, however, that they are not entitled to have it both ways and we ask them to face the alternative. Either they are discharged in the sense of going out and staying out or they are not. We will not re-employ any man who insists on his discharge in the full sense and applies for compensation. Accordingly, if any of those officers wish to take the view that they are discharged, that their office has been abolished, and that they are entitled to compensation under Article 10, that is something that we can not prevent, but we will not re-employ such officers. An officer who takes that stand must simply go and take his compensation. If we re-employ any man he must waive his compensation rights altogether so far as they arise out of his technical discharge—a technical discharge which is undoubtedly there once we pass this Bill and once Part 1 of this Bill is brought into operation. We have gone to the length of saying in this Bill for the assurance of the timid that if any man accepts [1427] re-employment under these conditions and is subsequently discharged, not through his own fault, his claim for compensation shall thereupon revive. If any official is unwilling to accept these terms, if he will not accept re-employment with these guarantees in lieu of compensation, then we do not want him, and whatever temporary inconvenience may arise we will get on without him. But if I may venture to do it I would like to offer a word of advice to the younger men particularly, those who, perhaps, feel that in the past, for one reason or another or for many reasons, they have not had a square deal—men to whom is now thrown open the whole avenue of promotion, and I would say to them that they should think twice, and many times, before they decide to become pensioners rather than serve their own Government on a guarantee such as no other class of civil servants ever had. There may be exceptional cases. There may be men amongst the court staff, as there have been men in other branches of the public service, who are genuinely determined not to serve an Irish Government, but for the ordinary Irishmen in the courts I do not hesitate to say that retirement in the existing circumstances would not merely be an unwise course from his own individual point of view but would be an unpatriotic course.

I have reason to believe that the views that I have expressed are, in fact, held by the great body of court officers themselves. I feel that I can reassure Deputies who might fear that one result of this Bill and of the establishment of the new system which the Bill envisages would be any large exodus from the public service under Article 10 of the Treaty. I do not believe there will be any such result. I do not believe it is the tendency or disposition amongst court officers to take that course. That concludes the survey which I wished to make of the court staffs, commencing at the District Court and going up through the ranks, to the higher officers.

There is one word I would like to say on the Bill generally. At this stage we are considering it in outline and in [1428] principle. There will be probably an interval of some length between the Second Reading and the Committee Stage, and it may be that I myself may have to bring forward, or have brought forward many official amendments. For one thing the exigencies of Parliamentary time made it necessary for me to bring in the Bill rather abruptly as soon as I was in a position to get it from the draftsman. I was anxious to have the Bill before the Dáil, because until this Bill is law the rules of court cannot be brought before the Dáil and the Seanad. All that led to this position, which I would like just to comment briefly on—that the judges did not get an opportunity which I would have wished to give them to consider this Bill. The Bill was only for a very short time in the hands of the Chief Justice before it was printed for publication and for Deputies. It is at present being considered by the judges and it may be that suggestions and recommendations may come along from that source which, on examination, it would seem wise to adopt. In that event I would, of course, bring forward official amendments for the Committee Stage, but in broad outline and in principle I put the Bill for the consideration of the Deputies and I move its Second Reading.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  I have no doubt whatever that the Bill will make for greater efficiency of the bureaucratic kind in the working of the mechanical arrangements—the ordinary office work of the law courts. I can quite imagine that much is needed in that direction and that this will make for such a beneficent change, but I am not at all convinced that the policy which the Ministry is pursuing in respect to this Bill and in respect to the whole court procedure, has been thoroughly ventilated and justified by the Minister. I am not dogmatic on the subject, because I am in doubt, but I want to point out what I think is being accomplished —that is, a very radical change in the relations between the Executive, the political institutions and the judicial institutions of the country. This is only a later exhibition of the change that is being accomplished, and it does [1429] not seem to me to have been recognised by the country or the Dáil or to have been justified yet by argument. It may be justifiable; I have no doubt that very many grievances, very many anomalies, probably very many inequalities, existed under the old system, but whether we are adopting the only means that is at hand to bring these things to right or not, I am not at all certain. What we are doing under this Bill, as under several other Bills, is to bring the judiciary more and more into relationship with and under the direction of the political institutions. It may be justifiable; it may be explainable; it may be the right thing to do, but it has not yet been justified by argument as a matter of anything more than mere practical convenience.

It is very generally known, and usually pointed out with pride, that the judicial system which we have taken over is supposed to be entirely independent and distinct from the Executive authority and free from any influence by that authority. It is that which is desired to be continued by everyone who speaks. But as a consequence of the intention to keep the judiciary independent of the political Executive and the Legislature once they are appointed, part of the plan was undoubtedly to keep to the judiciary themselves the control of the machine of which they are the head. That is to say, the whole of the machinery for administering and interpreting the law, the administration of justice as between litigants, was supposed to be under the direction of the judiciary, and while undoubtedly they came eventually to be paid out of the Executive funds, in many cases they were still an autonomous portion of the Governmental institutions of the country.

I think we are entitled to have the case argued on the principle apart from the practical questions involved in this Bill—that is to say, whether it is justifiable that the appointment of the higher officers particularly, of the courts, should be at the discretion of the political executive for the time or whether power of that kind should not be retained with some modification perhaps, still in the hands of the judiciary. [1430] I say that that is the principle involved here and that that is the principle that should be argued and which we should be convinced of before we consent finally to the passing of this Bill with all that is involved in it.

As I said at the beginning, I am not raising any definite opposition to the proposition. I am only querying the wisdom of it and asserting that the case for that change has not been made. I think the Dáil has not been aware of the very big issue that is being decided in these various Bills dealing with the courts. The Minister will not mind my referring to a Bill that has been recently passed and that we have agreed to in the circumstances. I am speaking of the Land Bill. It is another illustration indicating the state of mind on the part of the Executive Council in regard to this question. Then I have had in mind since December a statement of the Minister himself which also, I think, throws a little light on his attitude of mind on these matters. In the course of the discussion on the Courts of Justice Bill, in Committee, I raised a question as to the proposition that the Chief Justice should have a final say in the appointment of which judge should try a particular case, and while a good argument, no doubt, was used by the Minister in justification of this it was agreed that with the position that had hitherto been adopted of allocating judges to certain cases by some sort of rote, there must be a final decider when any question arose.

I put the hypothetical case that a political issue might be raised in a court and a particular judge might be appointed to try that case. I made an interjection:

“Did the Minister ever hear of Peter the Packer?”

And the Minister replied:

“Yes, but there was not responsible government in the country then, and there were not two Houses of Parliament before which matters of that kind could be raised.”

A little further on he said:

“... the suggestion that judges will be selected to do particular work with an eye to the probable result if [1431] it is done by this judge, rather than by that judge. That suggestion goes to the very root of the whole judicial system and to the root of your whole confidence in the administration of the law, and, I think, it cannot be met. If one were to attempt to meet it, it would really mean that one had not confidence in the judges appointed by the Executive and in the desire of judges to be impartial between indicted persons and the State.”

This is the point I want to direct the attention of the Dáil to:

“I can only suggest, if and when cases of that kind arise, Deputy Johnson, or his successor in the leadership of the Opposition of the future, would merely have to put down a motion and raise the whole question.”

Of course that is quite contrary to the constitutional provision of Article 68 which lays it down that no judge can be removed except for stated misbehaviour and incapacity, and then only by special resolution. It is a constitutional understanding—I think it is laid down, as a matter of fact—certainly the Ceann Comhairle would not allow any question relating to the conduct of a judge to be raised in the Dáil except there was a formal motion intended to bring about that judge's removal from office, and it would have to be a very seriously propounded statement indicating misbehaviour and incapacity.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Hear, hear.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  I am drawing attention to this because it seems to me to indicate that the Minister is thinking too much of the possible control by the Executive and by the Dáil of the judges. and I think this Bill is a further indication of the state of mind which is allowing the judiciary and the judicial system to be brought into contact with and under the direction of the Executive, or in this case, of the Dáil. It is probably true—I have no doubt it is true, because it has been stated by so many people with authority to speak— that the patronage that has been exercised in the past by judges has been [1432] very often a personal patronage, and not one which has been exercised with proper regard to the requirements of the highest function, perhaps, in the State. Whether the remedy for that is to hand over the patronage or the appointments to the political executive——

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  What patronage?

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Patronage in the case of the two chief officers, which the Minister himself said would be appointed by the Executive Council—the master of the High Court and the taxing master. The other officers are to be appointed——

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  By the Minister.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Yes, by the Minister, by means of the Civil Service Commission, although I do not think it is laid down.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Who should appoint the judges theoretically in the Deputy's Utopia?

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  I am not talking about Utopia; I am talking about things which——

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Who, in fact, have appointed them?

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  The Executive Council. I am not making any point of that, or finding any fault with it, but I say that the difference that is being made is that the patronage that was exercised by the judges in the past is now to be exercised by the Minister.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  In respect of three officers.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Yes, in respect of three officers. I have no doubt that in the ordinary course of affairs the offices will be filled better if the system of Civil Service appointments was followed, but I am just wondering whether it would not have been possible to retain the autonomy of the judiciary —that is, in the control of the staffs after their appointment by this means, which has now been adopted in the Civil Service generally, and secure immunity from the possibility of suspicion that political influence may be exercised [1433] through the courts. The fact that these officers are to be civil servants brings them again into the category of removable officers, interchangeable officers, directly under the control of the political executive of the time. As I said at the beginning, it is possible that this may be a justifiable position. I am not affirming any positive views on that matter.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It sounds very like it.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  It may be justifiable, it may be arguable, but it has not been justified as a matter of principle, that it is desirable to change the system of having the judiciary-an autonomous institution, having control of the staffs of the judiciary, by bringing the staffs under the control of the political executive. It is a very grave question and I think should have been argued or justified as a matter of definite departure from a course of practice that is old-established and very highly thought of.

There is another point which has a little reference to the question I am raising. The question was raised by Deputy Corish as to the position of the under-sheriffs as the responsible officers with respect to Parliamentary elections. I think it would be true to say that the reason why they were appointed in the past was because of their detachment from the political authority of any Minister. I think I am right in saying that.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  No.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Historically. I think if that is to be changed the undersheriff is not the right person in the future to undertake the work of conducting Parliamentary elections. That has always seemed to be a little foreign to the duties of a sheriff, and I think in many cases they have not been very conversant with these duties. If we are going to make a change, if we are going to bring all these officers into the Civil Service, I suggest that it would be better that the conduct of Dáil and Seanad elections should be under the responsibility either of the Department of Local Government or of some department of the Minister for Justice, actually [1434] an administrative officer conversant with general local government affairs. I throw out that, because I think that the sheriffs have not been the most happy selection for responsible authority over Parliamentary elections.

I have been hoping that when the Rules of Court were to come before us we would see some evidence of the Minister's desire to make law cheap, and, as I would hope also, to make some provision for the poor litigant. There is nothing in the Bill which suggests to me that that has been in the mind of the Minister or his advisers, and I am sorry that it has not been thought desirable to make provision for the appointment of some officer of the courts who could be approached by the poor litigant for advice and assistance where it is clear that the costs of litigation are entirely beyond the capacity of the poor person. Such things have been done in other countries, and I was hopeful that we might have found a way of doing it when revising the system through the Rules of Court and through the Court Officers Bill. I do not know whether the Minister can tell us if he has thought of this proposal, which, I think, was made earlier, but if he has not done so, and if it is still possible to do so, I would be glad to hear that he would be willing to give it consideration.

I had recently brought to my notice a Workmen's Compensation case where a solicitor charged the widow of a motor-lorry driver £50 for costs. The action was successful and costs were given against the employer. The solicitor deducted the £50 from the compensation of about £240 awarded to the widow. The widow knew nothing about taxing costs and was naturally chary about seeking further legal advice elsewhere. That is only one slight illustration of the very many occasions when poor persons are unable to get the advantage that the courts of justice give, because of the fact that the legal costs are so utterly beyond their reach, and, when the case is won, the costs eat up all the damages that may be given. Apart from that class of case, there is also the case of the prisoner who is undefended and who cannot get proper advice or assistance. [1435] I was hopeful that the Minister might have been able to find a way to meet such cases as I have spoken of, and I still hope that it may be found possible to introduce into the system of law some State advisers for poor people who are not able to afford the ordinary cost of litigation.

Mr. O'DOHERTY: Information on Joseph O'Doherty  Zoom on Joseph O'Doherty  The statements which the Minister made of the purpose of this Bill seem to have pleased Deputy Johnson, as it has pleased most Deputies. I think the Minister's statement has convinced most of us that the terms of the Bill are entirely suited to the purpose for which it was designed. In regard to Part I., the removal of the sheriffs and undersheriffs and the grouping of the authority in a county registrar will be of the greatest advantage to legal gentlemen locally and to the public at large. There is only one comment that occurs to me in connection with that part of the Bill, that is, in regard to the probate offices. As the Minister said, the probate office for County Donegal had hitherto been in Londonderry, which unfortunately, is not now in this State. I would ask the Minister, as I have not opportunity for finding out myself, whether there is not sufficient work for a probate office for the County Donegal itself at Letterkenny, and if so, that one might be set up there.

In regard to the other portions of the Bill with reference to the High Courts. I think that the arrangements are excellent and that the Minister has fully justified himself. On Part III. of the Bill I have some doubts in regard to the wisdom of the course that has been adopted with reference to the district courts clerks. Possibly when the Bill is in Committee we will have some alterations, and I shall raise my objections on that stage. But as the Bill comes before us and as it has been expounded by the Minister I have the greatest pleasure in supporting it.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  I do not know whether it is always an advantage to be the leader of the Opposition, but in discussing this Bill the leader of the Opposition has had the first word. In the discussion that has opened on this [1436] Bill the leader of the present Opposition has taken advantage of his opportunity and has said the first word. In fact he has taken out of my mouth the words that I intended to offer by way of comment upon the Bill which is essentially one for Committee. The House, I think, will agree that the Minister has given a full and detailed exposition of the various proposals contained in it. For that we are all grateful. With the principles underlying those proposals—principles of economy, efficiency, of compensation for existing officers, of endeavouring to get as many of the present existing trained and experienced officers to remain on in office —I am in complete accord with the manner in which the Minister has dealt with all of them. There is only one principle embodied in the Bill, one that I think was not essential to it, with which I have to quarrel. It is proposed to change what used to be known as judicial officers into civil servants. That, in effect, is the proposal in this Bill, and though there may be, as Deputy Johnson has said, some reasons advanced for taking that course, there certainly was no necessity for it for the proper administration of the courts. So far Deputies have not been informed of its advantages. The patronage in the past which belonged to the judges may have been abused. I am not here to defend the doings of the old judiciary in Ireland. But, be that as it may, is it to be contemplated that practices which were not for the best in the past—conducted as they were by a judiciary largely, if not entirely, out of sympathy with the political aspirations of the people—would necessarily be followed now by a judiciary of our own making, a judiciary adjudicating in our own State and according to our own Constitution? I think that the principle underlying this change is somewhat of a slur upon our present judiciary, and possibly on the members of the future judiciary of the Saorstát.

It is proposed to have three principal officers. One of these, the new master of the High Court, will certainly have his hands full if he is to perform efficiently all the duties attached to the office, some of which were detailed for us this afternoon by the Minister. I do not think I would be disrespectfully [1437] describing this gentleman as the future Pooh-Bah of the law. He is to take the place of, amongst others, the existing chief clerk. He was described by the Minister to-night as a kind of a minor judge. These were the words of the Minister himself. This gentleman is to be appointed by the Executive Council and is to be removable at the pleasure of the Executive Council. That, of course, does away with the suggestion that he is anything in the nature of a judge, because, according to the Constitution, our judges are independent of the Executive and can only be removed by a resolution of the two Houses of the Oireachtas. Up to this the Chief Clerk and the Taxing Masters were appointed, it is true, by the judges, with the concurrence of the Lord Chancellor. That was under the Judicature Act, and the only method by which they could be removed was as the Minister correctly stated, by an order. The reasons for their removal were to be stated on that order, which was to have the concurrence of the Lord Chancellor. The new officials, the Master of the High Court and the two Taxing Masters, are to be removable, and the position is that while all officers, even minor ones, in connection with the Courts were in the past treated as judicial officers, these new officers are all to be treated as civil servants. What I understand sub-section (3) to mean is this, that in the case of the three officers I have mentioned they would be appointed by the Executive Council and hold office at its pleasure. Then it goes on to say, “Every other of the said principal officers”—that, I presume, refers to the officers mentioned in sub-section (1) of the same section—“shall be appointed by the Minister and shall hold office at the pleasure of the Executive Council.” They are all to be civil servants, not judicial officers.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  The Deputy has used the words “judicial officers” so often, perhaps he will not mind me intervening to ask him what he means by those words. Does he mean an officer performing judicial functions, or an officer appointed by a judge on grounds of consanguinity or otherwise?

[1438]Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  What I mean is, an officer performing duties such as the Minister has described as quasi-judicial duties. I would, for instance, say that the present chief clerk and the present taxing masters are judicial officers and, as such, their method of appointment and their mode of removal are completely different from those of ordinary civil servants. The proposal now is to change that method and, instead of having the administrative control of the Courts of Justice entirely in the hands of the judiciary, it shall be at the disposal of the then Executive Council. I do not know whether this is the proper time to discuss any proposed amendment to that contemplated change, but if the Minister and his Executive have made up their minds, if they are convinced, and if they obtain the sanction of this House to change the system of relationship between the Judiciary and the Executive to this extent, then I suggest as a reasonable amendment to their new proposal that if these officers are to be appointed by the Minister for Justice they should, at any rate, not be removable except by the same system by which the previous judicial officers were removable, substituting the present Chief Justice for the then Lord Chancellor.

Perhaps I might be able to explain my proposal in more simple language by suggesting that, instead of, as now proposed, having these officers removable by the judge who appointed them with the concurrence of the Lord Chancellor and for reasons to be stated on the order of removal, they should be removable by the Minister for Justice with the concurrence of the Chief Justice for reasons to be stated on the order of removal. I say that that, to a certain extent, might ensure the stability and also, perhaps, the independence of those judicial officers. Let them be appointed, if the Minister so chooses, in the first place by the Executive Council, but having been appointed to what I term “judicial offices” and to what the Minister terms in regard to the masters of the High Court “quasi-judicial offices,” let them be removable only by the Minister with the concurrence of the [1439] Chief Justice for reasons stated on the order of removal. That is a suggestion which I throw out and it might, perhaps, be more suitably proposed on Committee Stage, but I am taking this opportunity to do it, as the Minister has stated that it will be some time before we reach the Committee Stage. I respectfully ask him to consider the proposal I have made if he is not determined to have these officers anything more or less than ordinary civil servants. Of course, as Deputy Johnson says, this is a very big and grave departure, and while making these suggestions I am not to be taken as approving, exactly, of the proposed change. I am not irrevocably opposed to it. I am open to conviction.

If it is considered that in regard to appointments by what was known in the old days as “patronage,” they should rest with the Executive Council, I suggest that the removal should not be entirely at the pleasure of that Council. In regard to some of the details with which the Minister dealt so ably, I am not going to weary the House except to refer to one or two of them. I listened attentively to what he said in regard to all the staffs, and, in the first place, with regard to the District Court Staffs. He let drop a hint that it might be possible—he did not, I think, give an absolute assurance, but, perhaps, he might be induced to go a little further in that direction on the Committee Stage— that, at any rate, whole-time temporary District Clerks should be made pensionable officers. I hope he will consider that, and, as according to him there seemed to be very few of these officers, it would not make a great difference financially, while in principle it would be a sound step to take. These men were appointed and have acted as whole-time officers, and if such men as process-servers and others are to be treated as pensionable, it seems hardly fair that whole-time men in responsible positions, such as District Clerks, should not have equally the same benefits. I hope, therefore, between this and the Committee Stage that he will give that matter his most favourable consideration.

On the question of remuneration, I [1440] must confess that I do not think the Minister has been at all ungenerous. He has laid down, in regard to the existing High Court officers, that they shall, if they choose, continue to enjoy their present salaries. I do not think they should have any complaint in that regard, and I also think it right that when their offices are abolished, as they will be immediately by this Bill, if they seek to be re-appointed, they should not have it both ways. Perhaps the House does not understand me. What I mean is that they should not have the right to claim their compensation under Article 10 and at the same time be re-employed by the State. The Minister did let fall a remark in that regard which I should like him, if he can do so, to clear up. It is quite possible there might be in the mind of some of those officers the idea that if they sought re-employment and succeeded in getting it, and thereby forewent their rights under Article 10, it would be possible for the Government, in a very short time, to get rid of them on other terms. The Minister said, in the case of men like that—that is, officers re-appointed and subsequently discharged—that if discharged through no fault of their own, their claim would be revived.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  I meant if they were discharged on considerations of redundancy or things of that kind. If men were discharged for misconduct or indiscipline in their office, there could be no question of a pension.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  I think that the only difficulty in securing, as I think the Minister very fairly said he wanted to secure, the services of those trained and efficient officers, would be that they would have a suspicion lurking somewhere—I am sure unfounded—in the back of their heads, that they would be taken on at the sacrifice of their compensation under the Treaty and then be nicely sidetracked. I hope the Minister will be able to dissipate such a suspicion if it exists.

I see one defect in regard to the re-employment of the officers of the High Court. Will there be room for them all? It is true, as the Minister said, that some will not be re-employed, because [1441] they might not be considered competent. Others will not be re-employed because they, perhaps, will have reached the age-limit. But even allowing for these two classes, I am somewhat doubtful whether there will be room for those who are left. I hope there will be, because, as the Minister has said, I think their services would be of great benefit to the State. There is just one point, before I leave it, that I want to deal with in regard to the High Court staff. Section 23 provides that

“in addition to the principal officers, there shall be employed in the several offices established by this Act, such and so many officers. clerks, messengers, criers and servants as the Minister shall, with the sanction of the Minister for Finance, from time to time determine.”

I presume it is provided that they shall be removable also at the pleasure of the Minister and the Executive Council. Is it, therefore, seriously suggested that no crier, servant or messenger, clerk or officer in the Courts of Justice, will feel that he is a crier, servant, messenger or officer or whatever he may be, of the judges or of those in immediate control of him, but that he can do what he likes and is only removable at the discretion of the Minister for Justice? I think that would be a very anomalous state of affairs and it would almost become ludicrous.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Would the Deputy mind elaborating that point?

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  It is proposed in Section 23 that all the staffs, including clerks and messengers, criers and servants shall be appointed by the Minister for Justice. The section says that “there shall be employed”—the word used is not “appointed”—such officers of the classes I have mentioned as the Minister shall determine. I take it from that—the Minister will correct me if I am wrong-that the Minister shall have the right to determine that employment, and shall be the one who shall be, in effect, their employer; that these officers will not be the employees or servants of the Judiciary, but that they will be the servants of the Minister for Justice. [1442] There, again, we are encroaching on the question of the relationship between the Judiciary and the Executive and there, again, I have to be convinced that it is a wise departure, that from top to bottom—from the Master of the High Court, the highest officer of all, down to the Court criers and clerks of the lowest order—the officers shall all be appointed by the Minister or the Executive, and shall have their employment determined by the Minister or the Executive.

However, as I stated in my opening remarks, this is essentially a Bill for Committee. It is very hard to discuss it in general terms. To the main tenor of the Bill I give my whole-hearted support. It is a Bill which is absolutely necessary, and which has been waited for for a considerable time. I do not know what the delay has been due to, but it occurred. It is a Bill without which the courts cannot function. As the Minister has said, the Rules cannot be laid upon the Table before the rule-making authorities know the class of people about whom they are making rules.

In winding up, I should like to ask the Minister when he will be in a position to have those rules laid on the Table of the Dáil? I presume this Bill will pass through the Oireachtas within a comparatively short time. I should like if the Minister would inform me whether the rules will be ready then to be laid on the Table of this House, because the whole legal system in the country has been held up in the absence of these rules. It is almost impossible to know what to do in the Circuit Court in regard to matters affecting procedure and costs. Litigants are anxious to proceed with their cases and have not been able to do so. The whole Circuit Court has been considerably delayed by the absence of those rules. If the Minister could enlighten the House upon that point, I should be much obliged.

Mr. McBRIDE: Information on Joseph MacBride  Zoom on Joseph MacBride  To me this Court Officers Bill is remarkable for one notorious omission. The declared policy of the Executive Council—a policy which has received the unanimous support of the Dáil—is to make this [1443] country Gaelic-speaking. In pursuance of that policy, Irish has been made compulsory in the schools and, as a natural corollary, all officials of the Government should have a competent knowledge of Irish. I am sure the Minister for Justice will be only anxious to rectify this omission and I hope he will make Irish compulsory for all new appointments under the Bill. I know that there has been some difficulty in so far as recent appointments are concerned but they could very easily be overcome by making a rule that pension rights should not begin to count until the individual has received a certificate of competency in Irish from the Civil Service Commissioners. In so far as District Court Clerks are concerned, I think any Clerk who supervises the work of three offices should be considered a whole-time officer and should have pension rights.

Mr. NORTON: Information on William Norton  Zoom on William Norton  I want to deal with one aspect of this Bill—that is in connection with the position of existing officers. I am glad to see that the Minister has provided in the Bill for the continuance of the existing salaries and conditions to those officers who can be offered employment under this measure. I think that is a desirable and commendable departure from the practice which has been pursued up to the present in connection with new schemes of organisation or schemes of reorganisation.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  How is that a new departure?

Mr. NORTON: Information on William Norton  Zoom on William Norton  It is a departure inasmuch as no such specific guarantee has been given to officers who have come under schemes of reorganisation since the Saorstát came into operation. I have only one regret in connection with the matter and that is that this provision has not been put into other schemes of reorganisation which affected the rights of transferred officers. I am sure that if it had been put in many trained Civil Servants would have been saved for the nation. However, I am glad that this departure from the previous practice has been made and I hope that it will be followed on the occasion of every scheme [1444] of reorganisation which comes into operation. I hope the Executive Council will assure transferred officers, under those schemes of reorganisation, that they need have no fear that their conditions will be worsened or their salaries reduced. If that be done, I think it will be good business for the Executive Council and good business for the nation, inasmuch as it will save many trained civil servants to the nation and enable them to continue their work without fear of their future.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  The Bill before us is obviously one of far-reaching importance. Looking through it, one recognises the amount of work that its preparation entailed. I think we may compliment the Minister for Justice on the very lucid way he has expounded to us the provisions of the Bill and the intentions of the Executive. The Bill is based on a really businesslike reorganisation of a Department which, whatever its merits, had no claim to businesslike administration. I have little hesitation in commending the Bill as a businesslike reorganisation of the Department from top to bottom. It is quite clear that the reorganisation makes for economy and for efficiency. Viewing the measure as I do, I cannot pay it a better compliment than to say that, from the business point of view, I could not suggest many improvements in it.

It seems to me that in dealing with the question the Ministry has taken the whole court system and has welded it into a Department which, in my judgment, should work satisfactorily. I think that the economies that can be secured on these lines will be very considerable. Having said so much, it is necessary to say that my criticism of the Bill begins and ends. The operation of the Bill does not end there, and I hope that the legal profession as a whole, solicitors, barristers and judges, will concentrate on the legal aspects and let us have the benefit of their views on the Committee Stage. I confess that I would be entirely incompetent to follow the procedure and the intricacies of the law itself. Deputy Johnson has raised a very important question, and if the implications that he attaches to the change are sound, [1445] it must be a matter of grave consideration for members of the Dáil on the Committee Stage, so that the intention of the Constitution and of previous Acts is carried out. That is to say, that the judicature shall be entirely independent of political influences, in so far as anything can be independent of politics. I think that is a difficult thing to achieve. It would be unfortunate if any large body of the people came to the conclusion that the operation of the law could be, in any way, affected by active political considerations. In a small community such as ours, I think it will be very difficult to separate the various influences that are operating at any particular time. What I mean is, that it is almost impossible to avoid dovetailing the different sections of the people into a Department. It is very hard to effect a complete severence of any Department from the influences which must necessarily be brought to bear upon it in a small community.

The ideal Deputy Johnson sets before us is that the Executive Council should not have any power to influence judges or appointments in connection with the courts. If that was carried into effect it would mean that the law would have to stand by itself, and there would have to be a separate means of making appointments as compared with the other Departments of the State. I do not think that could be carried out in its entirety. Appointments must have a political source if the Dáil is going to have control of administration. Where the danger would be, is that after the appointment the political influences should still continue. That is a phase of the change that, I presume, will be taken into consideration by people who are better able to express an opinion on it than I am. I hope that the Bill will receive the fullest criticism from that point of view. As far as I am able to criticise it, I think the Bill is an excellent one. It is a Bill in the right direction, and in operation I think it can be made to work without in any way diminishing the influence of the judiciary on the community. I am only referring to the judicial side of the Bill, so that I may be free to criticise amendments [1446] brought forward on the Committee Stage. At present I have nothing but commendation for the Bill.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Deputy Redmond said there had been undue delay in introducing this Bill. Of course, that statement is absolutely true and absolutely safe. There is delay in introducing every Bill, and the Deputy will probably agree that it is just as well there is.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  I wish there was more delay sometimes.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  As to the question of undue delay, I put it to the Deputy that no one is in a position—not even myself—to judge of that, because I would naturally be biassed in favour of one Bill rather than the other. The factors are so numerous and so complex that I do not know of anyone who could decide fairly as to whether or not in the case of this particular Bill, or of any Bill, the delay has been undue. The Bill was a very difficult one to prepare. It is a highly technical Bill and I think that the time spent on its preparation has been well spent. It is certainly not the kind of building that should be done in a hurry. Such as it is, it is before the Dáil, and the criticism—even the Deputy's criticism—has not been of a devastating nature. Deputy Johnson got on a theme of his as to the correct relation between the judiciary and the Executive. One could read too much about subjects of that kind.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  And one could read too little.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Possibly, but I put it to the Deputy that he is the victim of tradition in a way, and perhaps of over-reading in another way. He envisages the judiciary as some vast thing apart, that moves majestically on its way, apart from and independent of every other phase of our existence. That, of course, is not so. It is notoriously not the case. On reflection the Deputy will probably realise that every judiciary leans on the Executive for the enforcement of its orders, and for the enforcement of its decrees. There are points of contact [1447] like that that one has not been able to get away from in any real State in this world, as distinct from an imaginary state in some other world. While Deputy Johnson was speaking something came to my mind that I did read —because I do sometimes read—about an instance in America where a certain Judge Marshall had given a decision which was unpopular with the President, and the comment was, “Marshall has given his decision; let him execute it.” There was a refusal to carry it out. The Deputy might seize on that and weave an argument about it. He might say, “That, perhaps, could be moulded into an argument in favour of the judges having their own staff, and having the carrying out of Executive functions that follow on the giving of a judicial decision.” That, of course, means two states almost, and it is not practicable. I put it to him that the issue is not so much a question of abstraction as between the Executive and the judiciary, but a question, for one thing, as between responsible and irresponsible patronages, and for another thing, as between control of the court staffs and no control whatever. I mean that whereas the Deputy is thinking in terms of constitutional abstractions I, perhaps, from the nature of the position, have to think in terms of actualities of the position. Now, what is the business of a judge? The layman who has not over-read himself might think there is a lot to be said for the point of view that it is the business of a judge to judge an issue arising in litigation that comes before him, and to leave it at that. The Deputy, with his view obscured perhaps by tradition of what he has seen and is accustomed to, is hanging grimly to the idea that it is not merely the business of a judge to judge, but that it is also his business to act to some extent as an administrative officer, and to control the large staff appointed by himself for reasons that might be good reasons, or bad or middling reasons. At any rate, his duties and functions go beyond that of determining questions of law brought before him by a litigant, and run to administration and control of big [1448] staffs. He may not be at all fitted for administration and the control of staffs.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  A Cabinet Minister may not either.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Quite, and if not his sins will find him out and he will answer for them. It is different with a judge. He cannot be removed except for misconduct in office. He cannot be removed for failure to control staffs. He may be eminently unfitted for that kind of work. It does not follow that because a man is learned in the law that he has great administrative skill. He probably has very little administrative experience from the nature of the case. He may have spent his life as a Chancery lawyer and be appointed to the judiciary, but it does not follow that he has any skill, bent or experience of administration, yet according to the Deputy he is to control the staff and to see that office organisation is good, that the public requirements are adequately met, and covered in all the offices that are attached to the courts. Why is that? What is there to be said for that view? I thought we had settled this issue in the Ministers and Secretaries Act, 1924. I thought we had settled it when we laid down in the schedule as the first duty of the Minister for Justice that he was to be responsible for all courts of justice, and the officers thereof save in so far as the same are reserved to the Executive Council, or are excepted from the authority of the Executive Council, or the Executive Minister. But apparently we have not settled that. The question is raised now as a great constitutional issue—who is to control the courts' staffs, who is to answer for them, if anyone is to answer for them? I do not see how there can be any responsibility for them if the view is taken that they should be appointed by and controlled by the judges, who are not responsible to Parliament, and who cannot be removed from office except by a vote of both Houses for gross misconduct amounting to corruption in the fulfilment of their office.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  Does the Minister contemplate the possibility that conduct of the taxing master or the chief [1449] registrar may be the subject of frequent discussions in this House?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  I am trying to sound the depths or scale the heights of the Deputy's argument. His point of view is that we are engaged on something that is unwise, or at any rate the wisdom of which has yet to be shown to him, that we are engaged on a process which he calls converting judicial officers—it was Deputy Redmond who used the words, but the idea is the same—into civil servants, that we are bringing about some extraordinary change, the soundness of which is at least doubtful. The change we are bringing about is, it is proposed that in future there shall be some responsibility for the highly-paid officers who are attached to the courts system. In the past there was not any, and perhaps that is why down in the courts you had, far more than in any other phase of public life, the most wanton corruption and the grossest redundancy of staff. Every judge was a law unto himself. His court was a watertight compartment. He had complete power of patronage there, and he possibly had neither the aptitude nor the time to control the work that went on there to satisfy himself that it was properly apportioned, that men's time was fully occupied, and that they were giving value for their salaries.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  May I ask the Minister whether it would not be possible under this system for a question to come before the master of the High Court arising as between an individual of the State and the State itself, or between an individual of the State and a department of the State, and whether it would be proper for such question to be determined not by an independent judicial officer, but by a civil servant removable by the Executive Council?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  There is no final jurisdiction with the master.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  No.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  That is No. 1. As regards No. 2, Deputy Redmond and Deputy Johnson seem to consider that the judges fell from heaven.

[1450]Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  I do not at all consider that.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  The judges were appointed by the Executive Council.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  I am aware of that. They cannot be removed by the Executive Council.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  They were appointed by the Executive Council, just as the master of the central office will be appointed by the Executive Council.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  The judges cannot be removed by the Executive Council. They can be removed only by a resolution of the Oireachtas. The proposal is that the master of the High Court shall be removable by the Executive Council.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Really, that is a tortuous mentality. The Deputy envisages something arising within the very limited jurisdiction of the master of the central office.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  The very big jurisdiction.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  As I say, the Deputy envisages something arising within the very limited jurisdiction of the master which will enable the Executive Council to hurl him out of office if he gives a decision in one way rather than in another.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  At any rate it gives them power to do it and that is what I object to.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  We are, therefore, dealing with things that Deputy Redmond or Deputy Johnson fears might happen. You have these intangible fears. The most that is claimed for them is that they are theoretically possible; technically they could take place. As against that what is the actual picture you have from the other system? The Deputy knows it better than I do and, in a peculiar kind of way, he almost suggests that it ought to continue—that judges ought to continue making appointments and be responsible for staff. He knows—he must know—that they are appointed for their learning in the law and not for their administrative capacity or experience. [1451] Even if they had administrative capacity and experience they would not have the time to control staff. The judges are overworked. It is just a question whether, in future, there will not have to be application made here for more judges. These are the men who are to control the court staffs, according to Deputies Redmond and Johnson. The whole thing is that there is a reluctance to face the fact that there has to be a clean break from that whole system of irresponsible patronage, judicial patronage, patronage for the exercise of which there was no responsibility to the people through any Parliament. That is what has given you the state of affairs on which the British Treasury expert had to launch his censures in 1921, censures which are now on record in my office. The Deputy knows as well as I do of the Mallow division and the Sheep-walk, and the other little pockets and burrows in the courts.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  I hold no brief for the past.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  No. Whereas the judiciary of the past, according to Deputy Redmond, were sons of darkness, the judiciary of the future will be all children of the morning, sons of light.

Mr. T. O'CONNELL: Information on Tomas O'Connell  Zoom on Tomas O'Connell  Sons of rest.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  That is not the position. It is not that you had one class of men inherently corrupt and that you had another class of men who, from the very nature of things, were impeccable. It is simply that men were placed in a position subject to a particular temptation, and in the most good-humoured and human-nature way they yielded. The thing became reverend by precedent and long practice. It became the established thing, and judge after judge succumbed to it. No doubt, his own view, and the view of his colleagues in the world to which he belonged, was that he would be a great fool if he did not. There were very few great fools in that respect, as the Deputy knows. Now we are to hesitate to change the system because, forsooth, we are making judicial officers [1452] into civil servants. The fact is we are providing for part of the public administration, and a very costly part. We are providing what did not exist before, control and responsibility. There was neither one nor the other in the past.

Professor MacNEILL: Information on Prof. Eoin MacNeill  Zoom on Prof. Eoin MacNeill  As the only old court officer present, let me say this discussion is painful to me.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  I should be more merciful to Deputy Professor MacNeill's blushes; but he knows that the picture I am painting is substantially accurate.

Mr. T. O'CONNELL: Information on Tomas O'Connell  Zoom on Tomas O'Connell  With notable exceptions.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It is, at least, far more accurate than any picture painted here to-night; it is far more accurate than the gloomy picture outlined by Deputy Johnson and Deputy Redmond as to the future state of affairs once these judicial officers become civil servants.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  We are entering on a revolution, and I would like the people to know that we are entering on a revolution.

Professor MacNEILL: Information on Prof. Eoin MacNeill  Zoom on Prof. Eoin MacNeill  If I am not mistaken, the staffs used to be controlled by the Lord Chancellor, who had no connection at all with either government or politics.

Captain REDMOND: Information on William Archer Redmond  Zoom on William Archer Redmond  He did not control some of them.

AN CEANN COMHAIRLE: Information on Michael Hayes  Zoom on Michael Hayes  resumed the Chair.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Deputy Johnson spoke of under-sheriffs as returning officers, and he said that in the future that duty might devolve on the county registrar. He saw an objection to that. The under-sheriff performed this duty because of the detached position he occupied.

Mr. JOHNSON: Information on Thomas Johnson  Zoom on Thomas Johnson  What was the origin of it?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  It was really a fairly direct appointment by the Executive. He was appointed originally by the High Sheriff, who was appointed [1453] by the Lord Lieutenant. Since 1920 he has been appointed directly by the Executive and he has been responsible for parliamentary elections. As between the responsibility of an under-sheriff appointed by the Executive and the responsibility of the county registrar similarly appointed, there is, of course, nothing to choose. I agree there might be a lot said in regard to questions connected with elections— questions, for instance, as to the preparation of the register, responsibility for the franchise generally, and the actual machinery on election day; but it does not just go to the root of things that the duties of the under-sheriff in that respect may devolve in future on the county registrar because the two of them are just officials appointed by the Executive Council. Deputy Doherty referred to the Probate Registry, and in doing so he really proved my case. I said there had been no local Probate Registry for Donegal since the establishment of the Free State, inasmuch as it was cut off from Derry, and there had been no outcry as to any inconvenience existing by having to do business with the principal Registrar. I think I saw in Deputy Doherty's attitude an emphasising of my point. It was quite clear that he never heard of any inconvenience before, and it is also quite clear that his first reaction, on hearing that there was no Probate Registry in Donegal, was that there ought to be one immediately established in Lifford, if for no other reason than to provide employment for persons at Lifford and to add to the amenities of the town.

Now, the question of economy was mentioned by Deputy Hewat. I wonder would it be a startlingly new point of view if I were to suggest to the Deputy that there can be more kinds of economy than one. There can be economy of better value and economy of better service. This Bill will certainly not result immediately in any considerable economy of the other kind, the kind I suspect that the Deputy is more out after, as the phrase goes. It will not result immediately, at any rate, in a very substantial reduction of expenses. It will result immediately, and increasingly, in better [1454] service, better value for expenditure, and there will, of course, in time, be that other kind of economy also, in that the system will be a cheaper and a more compact system than that which obtained in the past. But there is a redundancy in the Court staff which cannot disappear with the passing of this Bill, because that would involve one kind of expenditure instead of another. We have the Article 10 position, and these people have their rights and it seems better business to continue to employ those people to the maximum extent to which they can be usefully employed, than to put them out absolutely unproductively on the pensions list, giving return for the money they would receive. However, this Bill will not cure the redundancy in the Court staffs immediately, and all I can say with definiteness as to its immediate result is that I think there will come quickly following upon the Bill a very considerable improvement in the return for salaries paid in that direction.

Mr. HEWAT: Information on William Hewat  Zoom on William Hewat  Can the Minister give us some sort of idea of the comparative cost when these changes get into working order. It would be very useful for the Committee Stage. I do not expect enormous economy straight away.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Quite so, but I only threw out these statements as warnings. Deputy McBride referred to the question of Irish. Of course the future recruits to that branch of the service will pass through the machinery of the Civil Service Commission and will have to comply with the requirements of that body in the matter of Irish as in the matter of other subjects. But the existing officers of the Courts—I do not suppose the Deputy is suggesting it—cannot be put through a sieve retaining only those who are fluent Irish speakers. Recruiting to the service in the future will, of course, be on a different plane.

Mr. McBRIDE: Information on Joseph MacBride  Zoom on Joseph MacBride  But the new registrars must qualify in Irish?

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  I deprecate the tendency to use the Irish language as a spearhead for jobbery.

[1455]Mr. McBRIDE: Information on Joseph MacBride  Zoom on Joseph MacBride  I do not think the Minister should try to lead the House to believe that it would be jobbery to have a knowledge of Irish.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  No, I simply threw out the remark at random and out of its context. The Deputy need not take it as arising particularly from any suggestion of his unless he so wishes, but I do deprecate the tendency which I occasionally observe to use the Irish language simply as a useful spearhead for jobbery to be thrown aside when not needed.

Mr. McBRIDE: Information on Joseph MacBride  Zoom on Joseph MacBride  I hope the Minister does not insinuate that I ever did so. I have never done so. I consider it is quite wrong for the Minister to make such insinuations.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  Did the Deputy ever recommend District Court Clerks to me in the Mayo area who were not fluent Irish speakers?

Mr. McBRIDE: Information on Joseph MacBride  Zoom on Joseph MacBride  I did, but I thought they would qualify in Irish after a certain time.

Mr. O'HIGGINS: Information on Kevin Christopher O'Higgins  Zoom on Kevin Christopher O'Higgins  After many days.

Question—“That the Bill be now read a Second Time”—put, and agreed to.

Ordered for Third Stage (Thursday), 25th March.


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