Wednesday, 11 June 1941
Dáil Éireann Debate
Mr. Costello: I move the Second Reading of the Third Amendment of the Constitution Bill. The object of it, as is apparent from the title, is to provide better machinery than is extant  at the moment in the provisions of the Constitution to safeguard the independence of the judiciary. I should like to say, on my own behalf and, I think, also on behalf of Deputy Dillon, at the outset, that the introduction of this Bill is in no way intended to be in the nature of a criticism of the Minister for Justice in connection with his handling of the situation that arose in connection with a recent judicial problem. I want to make that perfectly clear. While, to some extent, the circumstances of that case have given rise to the introduction of this Bill, yet it is not to be taken as in any way reflecting on the conduct of that affair by the Minister for Justice. I am perfectly satisfied that whatever differences we, on this side of the House, had with the Minister were due, to a very large extent, if not entirely, to misunderstanding. I think that the circumstances of that occasion do give rise to grave misgiving as to the effectiveness of the existing machinery in the Constitution. We have now only very few days within which the Constitution may be amended by ordinary legislation, and we think that a matter of this kind is more properly dealt with by an ordinary Bill in this House, while the law permits it, than by the elaborate machinery of referring the matter to the people for amendment under the Constitution.
The traditional method of securing the independence of the judiciary has, of course, always been to provide that a judge shall not be removable except by both Houses of the Legislative Assembly. That method has been effective largely because there have been very few occasions on which the power of removal has been exercised. Once such a power of removal has been exercised in a given case, it will almost certainly follow that the effectiveness of the guarantee will cease. While removal by both Houses of a Legislative Assembly is regarded, from the point of view of tradition, as a great safeguard of the independence of the judiciary, familiarity breeds contempt, and once the thing has been tried out and it has been seen how easy it is, in fact, to operate, then the tendency  will be, we fear, to operate it with greater and greater frequency. Recent events do, I think, show that there is a problem to be solved. There are two sets of facts to be considered: one is where a judge is guilty of misbehaviour or misconduct, and the other where he is incapacitated. The same remedy is provided in the Constitution for both these sets of facts. The problem to be solved by this complicated machinery is entirely different when it consists of misbehaviour rather than of mere incapacity. Under the system obtaining here at the moment, we have in the Dáil machinery of Government depending upon the Party system. We have, therefore, the position that the Government is dependent for its life upon the majority of the House. Under the system of election to the Seanad, it must necessarily follow that whatever Party, or combination of Parties, has a majority in the Dáil must have a majority in the Seanad. The only possible safeguard of this principle of the independence of the judiciary, while the existing constitutional position remains, would be if the Seanad were differently constituted from the Dáil. While the Dáil and Seanad are similarly constituted the safeguard has no real validity whatever.
Once the existing machinery in the Constitution for removal of a judge is tested and it is found easy to operate, the tendency will be, or may be—I do not say for a moment that, with this Government, it will be, but we have to look to the future as well as to the present—to utilise that machinery more and more. There is always the tendency for Governments whose policy, perhaps, is of such a character as to bring them, from time to time, into conflict with the law to be restive and irritable when legal decisions and judicial opinions and pronouncements hamper their operations and the working of their policy. I think it is generally admitted—it is certainly admitted by all Parties in this House—as a fundamental principle that there should be some constitutional safeguard for the independence of the judiciary. It is essential in a State such as we live in that that principle should be very carefully safeguarded.  I think, as I say, all Parties are of the same mind on that principle. We think that the principle has been shown to have considerable weakness as it stands at the moment in the Constitution.
The Bill introduced by Deputy Dillon and myself is merely an effort by way of suggestion to provide a more adequate safeguard for the principle of the independence of the judiciary than exists at the moment. I am not wedded to the plan that is in the Bill. It is merely put forward in my view as the high-water mark. Views have been expressed to me, in fact, that the system in this Bill is a bad system from the point of view of safeguarding particular branches of the judiciary. The Bill is intended to cover all branches of the judiciary from the lowest to the highest. As matters stand at the moment district justices are not within the constitutional provisions, nor are the circuit judges. District justices are subject to the Disciplinary Committee that was imported into the law by the Courts of Justice Act, 1936. At that time I objected very strongly to setting up a committee which was designed to inquire into the conduct of district justices. Anything that has since happened has merely confirmed me in the view I expressed then. The circuit judges have no Disciplinary Committee, but I imagine it will be only a matter of time until some Government conceives the idea that as they have got some control over district justices through the Disciplinary Committee, it would be an advisable thing, from the official point of view, that some control should also be established over another branch of the judiciary, the circuit judges, by some similar committee. Then the process of eating into the principle of independence of the judiciary will go from district justices to circuit justices, from circuit judges to High Court judges and from High Court judges to judges of the Supreme Court, until the erosion into the system will crumble the whole structure.
The provisions of this Bill contemplate that district justices, Circuit Court judges, High Court judges and Supreme Court judges should all get  the same constitutional privileges. I can appreciate the official point of view which displays irritation when a district justice fines somebody 2/6 who, the Department thinks, should get six months. Perhaps a cumulative series of matters of that kind lead to the official attitude that these district justices are lacking in their duty and require some gingering-up and that the only way they can be gingered-up is by officials in the Department of Justice or some other Department. I have always expressed the view that no Government can be sure of getting the best person for a particular judicial position, no matter what care is taken in the selection or no matter what the machinery of selection is. At the present time, the machinery of selection is very largely based upon political considerations. It may or may not be a very bad system. No system will ensure that the best man for the particular position will be picked, however much the Government may try, but whatever care is taken and whatever the system is, once the man is appointed you have to lump it. He may turn out very good, very indifferently or extremely badly, but good, bad or indifferent he has to be accepted. That is the only way in which the public interest, taking the long view, can be served.
With that approach towards this problem I have always taken the view, even irritated, as I have been frequently, by judicial decisions and pronouncements, that the matter has to be approached along the lines I have stated. A judge once he is appointed has to be given the status, the respect and the privileges with which the Constitution provides him. Now, the question is, how best can this principle be safeguarded in future, because we are now faced with the last possible occasion on which this matter may be dealt with? We are, in my view, committed to the system that exists in the Constitution as long as the present Constitution lasts, if we do not take any measures now to reinforce the safeguards which are in the existing Constitution. As it stands at the moment, a political majority of one in this House and a political majority of one in the Seanad, can remove any  judge. I do not think that is a system that can be justifiably defended.
It can only be defended on the basis that it is the traditional method, the method we got from the British unwritten Constitution, the method that had its validity merely from the fact that it was a power that was never exercised, or exercised only on two or three occasions in the whole history of the judiciary in the last 140 or 150 years. I think in this country there has been only one occasion when a judge has been removed from office and then he was only removed after his conduct had been inquired into by an independent commission that had been set up. That system is based on political expediency, if it is looked at in its naked defencelessness. It can only have any validity if there is general agreement amongst all Parties that resort should not be had to the removal of a judge except in the last extreme. I doubt very much whether that principle will get practical recognition in the years to come in this country. For that reason we are anxious that there should be some additional safeguard— not necessarily those we have suggested in this Bill—provided in the Constitution before it becomes as rigid as it will be in the course of a few weeks.
The machinery that is proposed in this Bill is a two-third majority of both Houses, the Dáil and the Seanad. It is also proposed that, before such a vote is taken by either House, the matter should be inquired into by the Supreme Court and an opinion given by that court. A person who is charged with misconduct will then have an opportunity of making his defence. A person who is alleged to be incapacitated may be able, if given an opportunity, to demonstrate the fact that within a short time he will be able completely to perform judicial functions or that within a short space of time there is a reasonable probability that he will recover all his faculties. Under the existing system there is nothing necessary to secure the removal of a judge but a vote of the Oireachtas, and if the Government recommends that a judge should be removed, that recommendation must be  accepted by both Houses, otherwise the Government would have to fall. I think that is a principle that should not be accepted in present circumstances. I am very adverse to the system that is in vogue at the moment under the Courts of Justice Act of 1936 in reference to district justices and I would be still more strongly opposed to any proposal to extend that system. At the same time, there is the problem that a judge who is about to be removed either for misconduct or incapacity, should in accordance with the ordinary principles of natural justice be given some sort of opportunity of making his case or his defence, if defence be needed. There is no such machinery in existence in the present constitutional provision.
The proposal in this Bill, that the matter should be inquired into by the Supreme Court, is an effort to suggest an appropriate tribunal where the question of capacity or incapacity, misconduct or innocence can be independently investigated before the matter is adjudicated upon by both Houses of the Legislative Assembly. As I said at the start, I am not wedded to that system. I regard the provisions of this Bill as perhaps the high-water mark of safeguarding the principle. I would not be opposed to any reasonable suggestions that might differ in detail, provided the principle was fully recognised, that it should be difficult to remove a judge for misconduct or incapacity, that it should not be dependent upon a mere political majority in both Houses as it is at the moment and that, above all, there should be some machinery which would be of an independent character and which would give the person affected an opportunity of making his case and putting forward his defence, before he was tried in an atmosphere perhaps of political prejudice.
Mr. Dillon: I especially adopt the last words used by Deputy Costello. I need hardly say that I entirely agree with all he said in introducing the Bill, but he dwelt for some moments, in conclusion, on the fact that he was not wedded particularly to the terms of the Bill, but was merely concerned for an explicit vindication of the principle  underlying it. Personally, my attitude in regard to this Bill is that I am not so deeply concerned to do something positive as to prevent the doing of something in the hereafter. The purpose which I feel this Bill serves is to direct the attention of the Oireachtas to a danger in the years to come of the independence of the judiciary being slowly frittered away, and my concern is to get some provision inserted in the Constitution which will make it impossible for anybody of ill will, in the times to come, to attack the independence of the judiciary, without going to the trouble of amending the Constitution and thereby directing public attention to the fact that he is concerned to make an attack upon the principle of the independence of the judiciary. I feel that particularly because I am profoundly convinced that one of the greatest guarantees of a peaceful commonwealth is the assurance of the humblest citizen that there is a tribunal in existence in the State before which, in defence of his rights, he shall be equal to the mightiest in the land, including the Government itself.
I must only beg Deputies to believe that I am not in the slightest degree concerned to open up old sores in a matter of this kind, but we all remember times of fairly petulant and tumultuous political activity in this country, and I can remember as responsible a Deputy as Deputy Smith, the Parliamentary Secretary to the Taoiseach, referring in terms of considerable indignation to “these old men” standing in the way of the steps necessary to preserve the public peace at the time. I suppose Deputy Smith was speaking in good faith, and under the stress of great emotion, but I remember feeling equally that, but for “these old men”, the Taoiseach would have us all in jail, and it was a source of considerable consolation to me that he was still sufficiently wet behind the ears in the office of Taoiseach that he did not dare to square off to the whole judiciary. Deputy Smith seemed to think it was high time he did, and I must say that I think we kept the peace to the credit of us all in that time, because we felt that ultimately the rule  of law was supreme in this State, and even those amongst us who were most convinced that the Taoiseach was an irresponsible and dangerous person were liable to say in times of stress: “In any case, one thing we can say about the country is that there is still the rule of law,” and when one spoke of the rule of law, it was indissolubly associated in one’s mind with the independence of the judiciary.
As Deputy Costello very effectively points out, we inherited from the British the guarantee of the judiciary which is inherent in the unwritten Constitution of Great Britain and dependent on the bare vote of two Houses. When Saorstát Eireann was first set up, the Government of that day deliberately conspired to make the Seanad somewhat different in its personnel from the Dáil. The Dáil was a purely representative Assembly, elected by the people on a popular vote, while the Seanad was deliberately established to represent elements in the community which could not reasonably expect to get much representation on a popular vote, and there was carried into our new Constitution something of the differentiation between the House of Lords, a non-representative body, in Great Britain, and the House of Commons, which was broadly representative. But, as Deputy Costello points out, a long-established tradition is, in itself, a great safeguard until it has been once broken. The moment the necessity arises for departing from that long-established tradition, the danger is that further and further encroachments will be made until eventually the whole principle, once safeguarded by the tradition, will be eaten away.
While entirely subscribing to Deputy Costello's opening observations, in the course of which he said that this Bill must not be taken in any sense as a criticism of the handling by the Minister for Justice of the recent judicial matter which had to be disposed of, it is true that once the question of removing a judge by resolution was adumbrated in this House and resulted ultimately in that judge retiring, we saw—and I am bound to speak bluntly  because tact must not forbid references to real danger—that, within a month, a State solicitor got up in court and told a district justice that if he did not conduct himself better, he would report him to the Attorney-General. At once, as prudent men, they realised that an exchange of that kind in public court was unbecoming; they made suitable reparation to one another, and the incident was closed; but remember that it was not closed to the country people who listened to it. Here was a case of a judge going to be removed by Dáil Eireann, and, within a month of it, other judicial persons being told that if they did not conduct themselves on the bench, steps would be taken to civilise them.
Remember that we are concerned to persuade not only ourselves but our people that the judiciary is sacrosanct, and that no matter how big the man is who attacks you, the judge on the bench is a bigger man, if right is on the side of the little man. How can the little man be persuaded of that, if he once believes that, should a judge do something that vexes de Valera, by a simple Party vote of the Fianna Fáil Party, that judge can be kicked off the bench? It may seem quite unlikely to us who are accustomed to Parliamentary procedure that such a thing could conceivably occur, but, in honesty, let us ask ourselves the question: would it not have been quite possible for some of us in 1933, if we really allowed our tempers to run away with us, to proceed to deal with the “old men” who were making the enforcement of the law then, as it appeared to the Government, so extremely difficult? Fortunately, things never went so far, but it would have been very easy for them to go so far. Can we bank with assurance on the restraint, born, I think, of a good deal of bitter experience in this House, to save the situation again in the future?
Look at what happened in the United States of America recently when a clash took place between the Executive and the Supreme Court. There you had the head of one of the greatest democracies introducing a Bill to wipe out the Supreme Court by the introduction of new individuals simply because the  Executive had grown impatient of an independent judiciary. The profound feeling of a great people checked that attempt on the part of perhaps one of the most popular leaders in the world, but still, there you had a great and influential man—and, one might say, perhaps as level-headed a man as there is in the world, the President of the United States—making up his mind that if the courts continued to block his path, he would sweep them away. It was the Constitution saved them, and but for the fact that there was a deep-seated conviction in the hearts of the people that you ought not lightly to interefere with the provisions of the Constitution of the Republic of the United States of America, the Supreme Court of the United States would have been swept away and something else put in its stead that would do, at that hour, what happened to be for the moment the will of the Executive.
There is some confusion of thought when people come to reflect upon constitutional problems. I am a bit unorthodox about constitutions. There are some pious souls in the world who look upon written constitutions as a sort of insurance against revolution. I do not think they are anything of the kind. I think that if people are going to “revolute” it would not worry them very much tearing up anybody’s constitution—I never believed it would—but constitutional provisions, designed to protect the individual citizen against the Executive, whatever that Executive may be, may have great value indeed, and it is because of that character in this proposal that I believe it so valuable. I do not believe that if the whole State is going to be overthrown by some future compulsion, it matters in the least what we put in this Constitution, but it matters a great deal that, if we have in the Constitution that a judge cannot be removed from office without the virtual assent of the whole Legislature then every man in this State will know that if the Executive of the day seeks to tyrannise over him or to deny him his constitutional rights, there is a tribunal there which has the power and the independence to tell the Government—in  the vernacular—where to get off.
I suppose some Deputies in the House would be a little embarrassed by these references to the immediate past, but I think we can learn from the past. Do Deputies remember the stormy days when gentlemen opposite were clapping us in jail and we were getting writs of habeas corpus every 24 hours until we had their heads reeling? Do they not realise how valuable that was and how often the lid might have boiled off but for the conviction that was carried to every element that no matter how often the Government appeared to us to be acting unjustly, the judiciary could be invoked and that the Government would give way, and that no situation could ever arise in which a judge would be afraid to do his duty? If the Government agree with me that that fact contributed materially to the preservation of the public peace, will they not also agree with the contention of Deputy Costello that an old tradition, albeit carried over from another dispensation, is in itself a great guarantee when the public attention is arrested by the facility with which the machinery for removing a judge can be set in motion? Will they not agree with us that once that first incursion is being made, a great part of the value of the old tradition is gone? The divinity that doth hedge a king is somewhat gone, so people return to the charge very much more lightly, and the course they are embarked upon suggests itself to the people’s minds very much more readily than it ever would have done if the necessity for recourse to it had never arisen at all.
If these facts be true, surely it is desirable that we should ensure for the future to substitute something for the age-old tradition which has served us so well? I do not care what the guarantee is or what form it takes, so long as it is effective and so long as it provides against one thing and one thing only, and that is the doubt that might creep into the people’s minds that the judges on the bench would hold their office at the pleasure of the Executive of the day. That is the present position, in fact. I think the  public mind is awake to it now, and I do not think I would be right if, from a sense of delicacy, I refrained from painting the greatest evils that can arise. Who amongst us who has lived in America has not had the experience of making the comparison in his mind between the municipal judge and the federal judge? There, the municipal judge is a person who holds his office by the pleasure of the electorate. The federal judge is a life appointee who is regarded as virtually irremovable. It is common talk that if you go before the municipal judge the verdict depends on the length of your purse, and that if you go before a federal judge the verdict depends on the merit of your case. Now, my apprehension—one of many apprehensions that I at present feel—with regard to the present position, is this. As Deputy Costello points out, no matter how you pick your judges, they are not all going to be winners.
You are going to get a certain proportion of disappointments. Suppose the impression went abroad that interested parties could report judges to the Attorney-General and that there was any danger of action following on that, is there not serious danger that a weak judge, whose conscience, perhaps, was not altogether clear, might seek to make friends with the Mammon of Iniquity: that if he felt that he had given offence in a quarter, which might result in representations being made to the Executive for his removal, he might think it worth his while to conciliate another influential quarter in order to offset the influential person whom he had aggrieved? If that practice began to manifest itself, mark well that it would arise from the sense of insecurity in the judiciary itself. I do not apprehend that it would happen to-morrow, I do not apprehend that it would happen next year, but I am looking forward to the long view of the road which the judiciary might travel, were their independence ever rendered insecure; and accepting Deputy Costello's thesis that what was an adequate safeguard in the past ceases to be that, once the machinery  for removal is made to work, I take the long view of whither the judiciary may tend in this country, and I apprehend that once its security was seriously jeopardised it might travel the road of the municipal judiciary in America, and God forbid that any such system could ever obtain here.
I want that independence, that absolute independence, restored. I do not think that anybody in this House can contest the desirability of having an independent judiciary. I do not think anybody in this House would contend for a moment that a judiciary, depending for its tenure on the vote of a bare majority of the Deputies present in the House, is a secure judiciary. I do not believe for a moment that Deputies will believe that a judiciary, dependent for the retention of their office on the will of the present Taoiseach, is a secure judiciary because—let us face the facts—if the present Taoiseach introduces a motion to remove any judge on the bench, there is not a member of the Fianna Fáil Party that would dare stay out of the Lobby. If the Taoiseach arrived in and said: “Now, boys, either Judge So-and-so goes or I go; you can take your choice,” there is not a single one amongst you—and you know it in your hearts—that would not shake his head and say: “If we have to choose between Dev. and that ‘ould cod’ it will be Dev.”—and out the “ould cod” would go. Is it not true? Search your own hearts—is it not true? But if some more prudent member of the Executive Council drew the Taoiseach aside and said: “Maybe you can bring the sheep in to vote for shifting the ‘ould cod’, but if you cannot get the two-thirds majority there is no use in going into the House because Cosgrave’s men are not sheep and they will not do your bidding,” then the judiciary would be truly independent.
Mr. Dillon: The “ould cod” stays, exactly. There is the very essence of it, the “ould cod” stays. The fact that he is invested with a judicial function in this country renders his position secure on the bench, and because he was a good judge yesterday,  because he did what the Prime Minister wanted him to do, but an “ould cod” to-morrow because he refused to do what the Prime Minister wanted him to do, he is still a judge, no matter what the Taoiseach thinks he is—an “ould cod” or a Solomon come to judgment—and, as such, is sacrosanct and cannot be touched. Deputy Norton puts his finger on it. A judge is a sacrosanct person so long as he agrees with the Taoiseach, but an “ould cod” the moment he disagrees with him. Let us not dwell too much on the present occupant of the office of Taoiseach, but think of his successors, those who may reach his eminence in times to come. Suppose one of them took that view, that a judge was an “ould cod” because he did not agree with the Taoiseach of the day and the Taoiseach of the day thought that the Leader of the Labour Party would be better in Mountjoy than abroad, and the judge was an “ould cod” because he did not agree with him and kept granting writs of habeas corpus, would it not be good to know that, when the Taoiseach of the day desired to keep the Leader of the Labour Party in Mountjoy, he was unable to get rid of the “ould cod” because he could not get two-thirds of Dáil Eireann to help him to do it? Is that not the position?
Mr. Dillon: Surely the essence of habeas corpus is that there should be an independent judiciary to order the Executive to release a person whom the Executive thinks ought to be behind bars? If you make a judge’s tenure of office dependent on the pleasure of that Executive, it makes it more difficult for him to vindicate the liberty of the individual who appeals to him for protection. Surely that must be obvious?
All we say in support of this Bill is that we are not wedded to the terms of the Bill, but we are concerned to ensure that the judge who hands down a writ of habeas corpus ordering the Executive to undo that which they have done, to release that citizen whom they want to detain, shall be rendered absolutely  immune from interference by way of dismissal or removal by the Executive which he has set at defiance. That is all we are concerned with, nothing else, and any machinery which will effect that, whether it corresponds with this Bill or otherwise, is perfectly acceptable. Surely that is something Deputy Norton is as concerned to ensure as we are—or is it? I cannot think of any free man having two minds about such a question. What we are concerned with can be simplified to this. We are anxious to ensure that the judge who hands down a writ of habeas corpus directed to the Executive to deliver the body of a person whom they seek illegally to detain should be immune from interference by the Executive. That is all we ask for, and any machinery the Government devise to give effect to that principle will be acceptable to Deputy Costello and myself.
Mr. Norton: I imagine that when Deputy Dillon and Deputy Costello read this Bill in its printed form they were rather startled by the extent to which they were endeavouring to commit the Legislature to amend the Constitution in pursuance of their desire to render the judiciary independent of possible punitive Executive action, because Deputy Costello said that, while desiring to preserve the independence of the judiciary, he realised, at once, that this was the high-water mark of such independence. It is just there that the Bill is objectionable, because in an effort perhaps to give the judges a greater measure of independence than they have, it seems the authors of the Bill have overstepped the mark, and, in a desire to give the judges a greater measure of independence, they want to tie the hands of the Executive—whatever Executive may be in power—and prevent them dealing with any case where action is obviously called for.
Deputy Costello's amending Bill provides that before you can remove a judge for stated misbehaviour or obvious incapacity you have first to get a majority of the Supreme Court and nothing can be done unless you get a majority. In other words, you ask five judges of the Supreme Court to sit in  judgment perhaps on a judge of the High Court, a colleague and personal friend of theirs, one of the same vocation as themselves. That is the first trial body. Before you can get any verdict against the judge through the Legislature you must get a majority of the judge’s own colleagues to agree that it is desirable to remove him for stated misbehaviour or obvious incapacity. I do not think it is right that judges should be permitted to sit in judgment in that manner on a colleague. I do not think it is suitable machinery. Human feelings being what they are, and human frailties being what we know them to be, you are quite unlikely to get a majority verdict in favour of the removal of the judge, no matter how obvious his incapacity may be, and no matter how great his misbehaviour may be.
I think one of the defects in the Bill is that it proposes to set up in order to try a judge a body that is not, by the vocation of its members, a suitable body to try an offence of that character. Even if you could convince a tribunal of that kind that the judge was, in fact, guilty of such misbehaviour as warranted his removal, you then have to go to both Houses of the Oireachtas and get a two-thirds majority of the entire membership of each House. Let us examine how the thing would work out in this House. We have had important Bills under discussion here during the past few weeks and approximately 90 Deputies participated in the divisions. In order, therefore, to remove a judge, so far as this House is concerned it will not be sufficient to get two-thirds of 90 Deputies. If 90 Deputies were present out of the total membership of 138, every one of the 90 would have to vote for the removal of the judge.
Mr. Norton: Deputy Costello is, I am sure, an old Parliamentarian in matters of this kind and, being quite a skilful legal advocate, must know perfectly well that the case which was put up to-day in support of this Bill was built largely on fanciful fears. He tried to make provision against a possibility that might happen but that is very far remote from probability. Even if the Deputy reads his speech he will see that he was guarding against a possibility, and from that foundation he built what, I am sure, he felt was a gigantic superstructure but that had no foundation. It was the best case that could be made for the Bill. It was not a good case, bearing in mind our long-standing practice with regard to the independence of judges. Neither Deputy Costello nor Deputy Dillon quoted a single case to show that the Bill was necessary in fact in order to give judges a greater measure of independence than they have to-day. Deputy Dillon made reference to one recent case. Probably the less said about that case the better. One thing it did establish, and that was, that the Minister for Justice, in my opinion, dealt with that case with infinite patience, with perhaps a patience that was not wholly justified in the circumstances. That is a matter I do not want to go into.
However, Deputy Dillon used the case to say that the introduction of a motion was followed afterwards by an impudent outburst in a district court by a State solicitor. We have impudent outbursts by solicitors and also criticism of the Legislature by district justices. Both are to be deplored. It seems to me that one way to undermine the independence of the judiciary is the irresponsible statements made by some district justices; statements that are calculated to disturb the natural reverence which people ought to have for the independence of the judiciary. When you get people deciding legal points, not according to law but by a condition of mental seediness, it seems to me you are doing much  more violence to the independence of the judges than any provision in the present Constitution does to undermine the independence of the judiciary. I do not think any case has been made in support of the Bill. I do not think our practice for the past 20 years justifies any suggestion that it is the desire of any Party to interfere with the independence of the judiciary. It seems to me that the best kind of independence which the judiciary could get would be the type of independence which they get from knowing that all Parties in this State subscribe to the idea that judges, as long as they are not guilty of misbehaviour—and in respect of a judge the misbehaviour must be obvious—they will continue to enjoy the confidence of the country and, at the same time, be free from possible punitive action by the Administration in office.
There is one point we ought to consider. While Deputy Dillon talked about the need for safeguards for the independence of the judiciary, which is desirable, we ought not to carry it to the point that the State will have no safeguard. Deputy Dillon said that he did not want judges holding office at the will and pleasure of some people. Neither do I want them holding office in that way, if it means keeping the whip off the judges’ position, but we do not want to carry that to the stage that a judge will hold office to the displeasure of the entire community.
Mr. Norton: In balancing things one must consider which is the worst. Deputy Dillon compels us to keep a majority of the judge’s own colleagues as vocational relatives, I might say, to find him guilty, and then to have a two-thirds majority of both Houses— which is not a 66 per cent. vote, but, in fact, a substantially higher percentage vote—in favour of removing a judge. The mistake that has been made in this matter is that in endeavouring to give judges a greater measure of security the State is simply given no security.
Mr. Norton: I will come to that. The weakness of the Bill is that in endeavouring to protect the State you are giving the State no security against a judge when he is off the rails and, in addition, even in the case of district justices—some of whom have not distinguished themselves by the prudence of their utterances, but, as everybody knows, brought discredit on their colleagues—in this Bill we are going to take district justices into our arms and ensure that notwithstanding a tradition of intemperate utterances by some of them, they can go on and be as intemperate as they like, feeling that in future they have to be found guilty by a majority of the Supreme Court and by a two-thirds majority of the entire Dáil and Seanad before their removal. Even Deputy Dillon will realise that that is really carrying matters to extremes. It is undesirable that a judge considered to be guilty of misbehaviour should hear of that misbehaviour in the form of a motion for his removal in both Houses. I would prefer if some type of tribunal were set up to inform the judge of the nature of the case against him, to enable him to bring evidence in his own favour for the purpose of a verdict, and then to have action by the Executive. It might transpire that a tribunal of that kind would see the matter in a different light from that in which it appeared to the Executive, and possibly machinery should be devised to meet the situation.
Mr. Norton: I am of opinion that in the endeavour to give judges a greater measure of security Deputy Dillon and Deputy Costello have gone very much further than they intended to go. If the intention was to strengthen their hands it ought to be reasonable, and one that would give the State some safeguard against the possibility of a judge systematically misbehaving,  while at the same time giving reasonable security to judges against punitive action by an Administration. This Bill does not do that. If I were a judge, having read the Bill, I do not think I would ask for any greater security than judges have. The Legislature has to take a balanced view between what judges want for their safety, and what the Legislature is reasonably entitled to hold for itself in the interests of the community it serves. The Bill has been drafted to make the position of judges almost impregnable against the State, and to give them a status and a power which might make it quite impossible for the State to ensure that law was administered in the manner that every fair-minded person wants to have it administered. If Deputy Costello had aimed, not at the high-water mark but at the fair-water mark he might have got support for the Bill. He would certainly have got it from this Party. That might have commended the Bill even to the Government Party. The Bill has been drafted too widely, and if passed in this form would give the State no reasonable safeguard against the possibility of judges misbehaving themselves and doing so with impunity and with a Constitutional guarantee in respect of a continuance of that misconduct.
The Taoiseach: There is one thing quite clear from the speeches that were made, and that is that there is common agreement on the principle that it is right that the judiciary should be independent, that a judge in performing his duties should be in such a position that he can do so without fear or favour. The only difference between us is the question how that independence can best be secured. My own belief is that it is sufficiently secured as the position stands.
There is the question of machinery to be considered, but, fundamentally, the independence of the judges is already secured by the fact that a judge, once he is appointed and once he conducts himself cannot be removed at all, because a case for his removal has to be made. It has to be proved before a wide representation  in Parliament—before a jury of that sort—that he has not behaved properly, that he has been guilty of misbehaviour or else that he suffers from incapacity—that he is not able to perform his duties for some physical reason. That is the provision in the present Constitution. It is precisely the provision that was in the Constitution of 1922. In that Constitution a judge could not be removed except for stated misbehaviour or incapacity, and then only by a vote of the two Houses. That is the present position. There is no doubt whatever about it. There has been no change. During the short period when we had only a Single Chamber Legislature a change was made. In that case, I think a majority of four-sevenths was required before a judge could be removed. That was done to meet the view that something more than a mere majority was required. I think I am right in my recollection when I say that, on that occasion, a case was made for a Second Chamber by Deputy McGilligan on the basis that a rigid figure like four-sevenths could work out badly. It might be slightly too small or slightly too great. The case was made that it would be very much better, instead of having a rigid fixed number of that sort, to have two Houses. I confess that it was one of the few real uses that I saw for a Second Chamber: that if we had not a Second Chamber we would be forced to have rigid rules in connection with certain offices of that kind so as to prevent a mere majority of the elected representatives from being in a position to have their way too easily in matters in which it was desirable that there should be a check.
We now have two Houses, and, therefore, we are back again to the original position. It has been suggested here that the Second House is not now as different in complexion from the First House as it was in the past. Well, I beg leave to differ from that. When we were in opposition we certainly did not believe that there was very much difference between the votes that would have been cast for any particular proposition in the Second House and the votes that would have been cast for it in the First House. We felt that the Executive, which had a  majority in one House, was almost certain to have a majority in the other. Of course, with the change of Government, it might not have been so. The suggestion now is that then you had the chance that the Second House might not be of the same complexion: that a resolution that you might get passed through the First House might not pass through the Second in a certain set of circumstances, but when the majority in the Second House happened to be the same as the majority in the Dáil, it was a different matter. If, however, there was a change of Government, it might not have been so, so that the protection, so to speak, of the Second House only existed for a certain time following a change of Government.
I think that the composition and general character of what the Seanad is likely to be has been misunderstood completely, or misrepresented, perhaps. It is not always remembered that nomination to it is from vocational groups: that, though the Dáil and local bodies are the final electorate, nevertheless, they can only elect those who have been nominated. Therefore, if those nominating the groups do their duty in providing from amongst themselves the best and most independent types they can find to represent their views, irrespective of Party, you will have a Second House which may, on that account, be different from the First House. There is as good a chance, at any rate, that you will have it for one-half of the time as there was under the other system. Consequently, I think no good case has been made at all on the basis that such a change has been made in the constitution of the Second House as to render it of no value as a check upon, or addition to, the First House in regard to matters to be considered.
With regard to the question of the independence of the judiciary, that is a principle that is generally accepted. It is accepted not merely in this country but in Britain, America and in the other countries that have been referred to. The principle of absolute irremovability has not been found to work in practice anywhere. Whilst in  theory everybody agrees with the idea of the independence of the judiciary, so also, in practice, every country realises that there are cases when judges ought, in the public interest, to be removed, and provision has to be made for those cases. Deputy Dillon’s argument is that once you use any of these provisions you indicate a way, a method which will be followed, and that there will be an abuse of the power it gives. I suppose, to a certain extent, the road is indicated to the public, and there is a temptation for the time being to follow it, but, after all, the considerations which make the community value the independence of the judiciary will also be a check on any abuse of any method there may be in order to save the community from any dangers that it would have to face if judges were continued on when clearly they ought not to be judges.
To come back then to the position. At present a judge can only be removed by a vote, first in the Dáil and, secondly, in the Seanad on a motion in which the incapacity will be stated, or else the misbehaviour. These must be stated. I do not think that, in the period we have been here, there has been a suggestion from any side that the judges were in a position in which they were not independent. There has not been any suggestion of that. In fact, I was greatly surprised at the introduction of this Bill at all. Then, as regards the recent case—I do not want to deal with it—it seems to me that it certainly was not one which would have justified any fears that there was going to be any abuse, or that the matter was introduced in an arbitrary way. What did appear, of course, immediately to everybody was that there should be some sort of machinery in order to make this process work effectively and fairly. Everybody realised that, if we had to go on with that case and if the Dáil had to deal with the resolution, there would necessarily have to be some prior inquiry. If the matter had proceeded, my suggestion would have been to set up a select committee of the House, consisting of members of all Parties, to examine this particular case, hear whatever evidence was to be given by  those making the complaint and afford an opportunity to the person affected to appear directly, or by representative, in his own defence. Some machinery in that regard will have to be devised but I do think that, on the whole, Parliament was wise in not devising that machinery in advance. It was much better to regard this as a thing which was most unlikely to happen—something not so likely to happen as to justify the devising of machinery for it. If the time comes when it is vital to devise that machinery, we can sit down and do so. The Dáil can devise its own machinery under its Standing Orders or a resolution could be brought in, such as that which was brought in recently, providing for a special committee of inquiry. If it would shorten the process, we could have a select committee of the two Houses. That would be quite feasible.
Mr. Dillon: Would the Taoiseach consider the question of a committee on the lines of the Public Accounts Committee, on which the Government has not the preponderance that it has on ordinary committees of the House?
The Taoiseach: If I myself were bringing in a motion such as that with which we were faced a short time ago, believing there was a case in which action was to be taken for one sole purpose—the public interest—and that it would be advisable to have our hands strengthened, I would be in favour of a committee on which it could not be said the Government had a preponderance. I should be quite content—and I think, for general purposes, it would be very much better—to leave it to a committee of the two Houses, which could be selected in the usual way. It is a very common practice to stress the sins of the majority Party but it is quite possible to imagine a minority guilty of the things of which we are supposed to be guilty. Party feeling and Party prejudice do not lie completely on one side. Consequently, you might have a case in which a small minority—one-third of the members, for instance—would interfere with the  public interest and act in the opposite direction to that in which it is suggested the majority might act—that is to say, when a judge should be removed, by abstention from the meeting or, otherwise, preventing the removal taking place.
Let us be honest and straight in regard to this matter. I do not want to say anything against judges. They have a very difficult task, but we all know that they are human beings and we know that human beings are all the better for having someone to keep an eye on them. The public does that, but the public, of itself, cannot take action. It is equally important that the reputation of the judges should be high with the community as the reputation of individuals in other institutions of the State. From one point of view, it is more important, as they are out on their own. The fate of a particular case depends on their judgment, honesty and capacity. When you have 50 or 60 individuals, as we have, in that position, it is quite possible—taking averages, it is quite likely—that, now and again, you will have judges who will not be fully alive to the responsibilities of their position and will not, in fact, do their duty as they should do it in the public interest. It is well that, if things are not right, there should be power somewhere to bring them to book. Consequently, it is wise that there should be some method of dealing with a judge who is either physically incapable of doing his work or, for one reason or another, is neglecting it or is careless of his responsibilities. You want to have that power but you want, at the same time, to make it difficult to bring this power to bear, so that it will not be abused, so that, if an Executive finds that some public policy in which it is interested is somehow being checked by judicial decisions, it will not immediately resolve to use this machinery to get rid of the judge who is imposing the check.
I do not think that we are always fair to representative institutions in our speeches in this House. I think that, taking human beings as they are, on the whole, our representative institutions do their duty by the public and  are responsible bodies. I do not think that it is right to talk about sheep and people who will not have opinions of their own but will do just what they are told. I do not know if that is the experience of the Deputy in his own Party, but it is certainly not the experience in our Party.
The Taoiseach: What I am interested in is that the reputation of this Assembly and of the individuals who compose it should not be lowered in the public estimation. I do not think that it would be a good thing if that were done. From experience, I am satisfied that the individuals who are elected to represent the people have as high a sense of their public responsibilities as it is reasonable to expect of people who are human beings and that that is so in the State as a whole. We have here 138 representatives of the community as a whole. If they sit in judgment, as the community in miniature, upon a person who is accused of acting improperly, who is accused of misbehaviour on the bench or of incapacity, I am satisfied that their judgment, on the whole, will be a fair judgment. I am quite sure that if an Executive tried to bring in, under false pretences, a motion to remove a judge, they would not be supported by their own Party and they, certainly, would not get a majority of the House. In these matters, when justice has to be done to individuals and to the community, the representative feels a very personal responsibility and that responsibility shows itself definitely in the vote. I am not at all fearful that the position is such that it will be abused, but I do admit that there is a case for further machinery.
I am wondering whether it is not wiser to leave that machinery to be devised as occasion requires it than to set it up in advance. I certainly would be prepared, and I am sure the Government would be quite prepared, to meet other Parties in the House in devising  such machinery if Deputies think there is an advantage in having it set up in advance. I do not think a purely judicial committee would be the wisest.
That brings me to another question. There seemed to be a suggestion that there has been some change for the worse in regard to the position of district justices. I do not think so. The position at present is that complaints as to the conduct of district justices have to be brought before a committee consisting of the Attorney-General, the President of the High Court and the Chief Justice. These are three judicial persons and the body, as suggested by Deputy Norton, is one of a vocational character. These persons would be interested in safeguarding, not merely the interests of their brothers in the profession, but also in safeguarding the interests of the profession as a whole and in safeguarding the institution and the independence of the judiciary.
With regard to regulations for the Circuit Court they are very much in the air. If my view were to count in the matter, and if it should be necessary to take action on it, I think it would be desirable to have some such system as prevails in the High Court where the President of the High Court allocates the work and, at least, is in a position to know whether the work is being done or is being neglected. I think it would be desirable, in the interests of the community, that there should be some committee or authority of that kind in relation to the Circuit Court or that some individual should have, in relation to the Circuit Court, something like the functions that the President of the High Court at present has for allocating duties to the judges of the High Court. In other words he is in a position to see that a certain amount of work is done, that there are no undue delays and he has an opportunity in private of suggesting, if the convenience of litigants is not being reasonably met, that something should be done in the matter.
The Circuit Court judges are not protected by the Constitution; they depend simply on an Act, but there again, although their protection depends upon an Act of Parliament, there has never been a suggestion that the  security of their office has been interfered with. We have here guarantees of independence for our judges as great as there are in any other Constitution that I know of. Our judges are certainly as secure as in Great Britain. In the case of Switzerland, for instance, I was rather surprised when it was brought to my notice that judges are appointed only for a period of seven years. They are appointed by the National Assembly. They are open to re-appointment, but any citizen at all can be appointed a judge, at least in theory. In practice, however, it is only persons of high legal qualifications who are, in fact, appointed. That does prove, however, that you can have in some countries the election of judges by the Assembly. If we brought in a proposition of that kind, that judges should be elected for a period of seven years by a vote of this Assembly, I know what Deputy Dillon would say, letting his imagination run riot.
The Taoiseach: The question is: are we to assume that we are going to move always towards the worst? Why not assume that there is the possibility that we may gravitate towards the best rather than the worst? Why is it that some Deputies always assume that we are moving towards the worst? If it were suggested that judges should be appointed only for seven years, it would be said that they would be “yes-men” and that they would do whatever the majority wanted them to do.
In fact that is not so. However, with regard to this Bill, we are at one in the desire to have the judiciary independent. The only point upon which we differ is: what guarantees are we to give them which will not put them into such a position that they can afford to neglect their duties?
The Taoiseach: If no guarantee is worth a hoot, what is the position in Great Britain? They have a long tradition there. We have a fairly long tradition in that regard, too, but in fact the tendency is to be long suffering and I am in favour of that tendency. I think that Deputy Costello was right in suggesting that, on the whole, the community gains rather by long suffering in certain cases than by taking the redress which would be open to it. I mean that it is better to err on the side of putting up with rather indifferent service in some cases than to injure the institutions as a whole, by taking action which would seem to weaken the position.
All I can say is that we do not propose to accept this Bill, as we do not see any improvement that could be effected by it from the constitutional point of view. With regard to machinery for inquiry, we are quite open to adopt any suggestions that are made and try to come to an agreement on that matter. We are prepared to meet Deputies on the opposite benches in that regard, but I would suggest that there is something in the point that it is better not to prepare the machinery in advance. If you do so, it seems to indicate a readiness to apply the method, a readiness which is really not there. Nobody wants to adopt this method of procedure or to take this remedy at all if it can be avoided but, as human nature is what it is, we cannot dispense with it altogether and it is necessary to have it there in the background to use it if the public interest should require its use.
Mr. Fitzgerald-Kenney: The speech which we have just heard seems to me to be a speech very much more in favour of this Bill than a speech against it. It was an admission that the present position is entirely unsatisfactory and also an admission that the present position must be changed or should be changed and there was very little criticism of the particular method that is put forward here.
The Taoiseach talked, as Deputy Norton talked, about judges being made absolutely irremovable. This Bill does not make judges absolutely irremovable. It sets up a judicial committee to inquire as to whether a judge is discharging his duty, and, if they come to the conclusion that he is not, and if two-thirds of the Dáil and the Seanad come to the same conclusion, the judge is removed. That is not making him irremovable. It is making him removable, but only removable after an inquiry by a competent body. The Taoiseach declared that, before the Dáil acted, a select committee should be set up. There is no provision in the law as it stands for the setting up of a select committee. As a matter of fact, we had a motion for the removal of a judge here quite recently. The Taoiseach did not go into it, and I will not do so either, but there was no motion before the House for the setting up of a select committee of inquiry. There was a bald motion that the judge be removed, and that was the only motion tabled.
Mr. Fitzgerald-Kenney: If a select committee is to be set up, there must be a motion before the House to that effect, and, if it was the intention of the Government to set up a select committee in this particular matter, it is very astonishing that they did not put forward a motion to that effect when  they put forward the other motion. As it stands at present, without any inquiry at all, on the mere ipse dixit of a Minister, the House can be asked to remove a judge. That is an entirely unsatisfactory position, and we suggest that it should be changed.
The Taoiseach says that the judicial body suggested in this Bill is not satisfactory, but the moment after he said that, he covers with eulogy the method of removing a district justice, which is after inquiry by two judges and an Attorney-General. He quotes that method with approval, because it is already in existence in the Constitution, and then, as soon as he is asked to have the opinion of the Supreme Court taken on the matter of the removal of a judge, he said that judges are not the best persons to inquire. If judges are not the best persons to inquire into matters of this nature, why are they appointed to inquire into the removal of a district justice? The Taoiseach eulogised the appointment of judges to inquire with regard to district justices and condemns a commission of judges to inquire with regard to the Supreme Court.
Mr. Fitzgerald-Kenney: The Taoiseach is as skilful as anybody in using words to conceal his thoughts, but the Taoiseach’s words were very clear to me as putting forward the fact that district justices were very adequately safeguarded because two judges and an Attorney-General would inquire with regard to them.
Mr. Fitzgerald-Kenney: The Taoiseach declares that there is no danger of any political Party removing a judge because his decisions were unsatisfactory to them. I wish I could be quite satisfied that in no circumstances would there ever be a condition in this country in which the leader of a political Party—not necessarily now in the House—would not like to remove a judge because he granted motions for habeas corpus with more readiness than the Government of the day wished. We are told that we shall be perfectly safe in that no political Party would obey the Party Whips, if a man were being removed from office unjustly. How are they to know? The Minister gets up and says: “I have made inquiries and I am satisfied that this man is not suited to hold the position of judge;” he moves the motion; puts on his Party Whips; and the House is asked to vote with nothing but the mere statement of the Minister. That is the present position, and I am pretty certain that the Party opposite, in spite of what the Taoiseach says, would obey the Party Whips.
Mr. Fitzgerald-Kenney: One of the cases which come to my mind of the removal of a High Court judge took place shortly after the Act of Union, when a judge was removed by vote of the House of Commons and House of Lords for a political offence. He was removed because he wrote a pamphlet, under a nom-de-plume, in which he had the audacity to describe the Lord Lieutenant of the day as a respectable sheep-farmer from Lincolnshire. Owing to a pamphlet containing that slightly contemptuous but not very offensive description, he was removed from the Bench. That was purely and entirely a political matter, and what happened once may very easily happen again. It is admitted on all sides that the judiciary should be independent. It is admitted, if not by the Labour Party, by the Government Party, that the safeguards of the present position are not satisfactory, and that further safeguards are required. Here are the  further safeguards and, because the Government are in favour of the principle of the Bill as giving further safeguards to the judges, let them accept this Bill and amend it in Committee.
Mr. Costello: The remarks I shall make in concluding on this Bill will be very short and, I hope, to the point, because I am not going to give myself any more blood-pressure than I have in support of the Bill, having done what I conceived it my duty to do, that is, to direct the attention of the Dáil and of the people to the problem which I believe exists and which, I think, the Prime Minister himself knows to exist. He has admitted that some sort of machinery is necessary. One of the purposes of this Bill, its chief purpose, was to draw attention to that fact, and the effort in this Bill was merely directed towards putting down a form of machinery. I have already stated that I was not wedded to that form of machinery, and I state candidly now that I do not like the machinery that I have provided in my own Bill, but I had to provide something, merely for the purpose of initiating a discussion with a view to seeing if anybody could suggest a different or better machinery. It was merely for the purpose of stimulating discussion that a particular form of machinery was provided for in the Bill, the principle in the Bill being that some machinery should be provided.
Now, Deputy Norton said that if I had not taken the high-water mark of the safeguards, and if I had taken the fair-water mark of the safeguards, he would have supported me, but he himself had not thought of what either the high-water mark or the fair-water mark, or even the low-water mark of the safeguards was, and he came into this House here with one hand as long as the other and indulged in a lot of empty verbiage in opposition to this Bill without making any concrete proposal of any class or description as to the kind of machinery that might be set up. All he did was to point to the obvious imperfections of the Bill which I was proposing—imperfections so obvious that I drew attention to them myself at the start. I was even rather  attacked by one of the judges for putting in this thing about a judicial committee, he holding that that meant handing them over to some sort of committee of judges which they might not approve, but my withers—whatever one’s withers are—were completely unwrung because if I were a judge I should rather be in the hands of my fellow-judges than in the hands of some country Deputies who were merely, by virtue of an election, members of this Oireachtas for the Parliamentary term of office.
I think that the tribunal—if you can call it such—provided by the Constitution at present is entirely inappropriate. I think it always was inappropriate—this business of the so-called safeguarding of the independence of the judiciary by the Constitutional convention, or the provisions of a statute, or the provisions of a Constitution, that a judge could only be removed by a vote of both Houses of the Legislative Assembly. I hold that it was largely illusory as a safeguard. I say that it was illusory here from 1922 also, except this: that in the 1922 period and for some time afterwards there undoubtedly was a difference in composition between the Seanad and the Dáil, as constituted at that time. There is very little difference, to my mind, now between the Dáil and the Seanad, whatever the Taoiseach may say, but whether there is little difference or no difference I still think that this machinery of safeguarding the independence of the judiciary by a vote of both Houses is quite illusory. It has a traditional sanctity, and it is the sanctity that gives the appearance of a safeguard. Once the veil is taken away, once the illusion is exposed, it is no longer a safeguard and, in my view, the illusion has been exposed now in connection with a motion that was set down in this House. Now I made it perfectly clear, and I do not want to have to emphasise it again, notwithstanding the somewhat provocative remarks of Deputy Norton, that I am not in any way criticising the Minister for Justice for his action in that particular connection. I have some little difficulty in refraining from replying to  the provocative remarks of Deputy Norton, but in the interests of my blood pressure I shall refrain from doing so. The illusion, in my view, as I was saying, has been exposed because a motion was put down in this House, sponsored by the Government, and it is perfectly obvious to anybody that that motion would have been ultimately voted upon under pressure from the Party Whips. I want to say no more than that, and I am trying to refer to the case as inoffensively as possible, but I think that that is ultimately what would have happened. That, I say, is the exposure of the ineffectiveness of this system. I merely want to direct attention to that while there is time to do something about it. Any system that will provide some sort of safeguard which will not be illusory will satisfy me personally. I have no desire to keep judges in office contrary to the public interest. I sometimes feel very annoyed myself with judges, but that is not the point. The whole principle is at stake, and of course the principle is in the public interest and for the public interest.
Again, I say that the Dáil and Seanad are quite an inappropriate tribunal to discuss the question of the misconduct of a judge. It is a hopeless tribunal, a ridiculous tribunal, to have to sit on the question of the incapacity of a judge—whatever he is sufficiently ill or not to do his duty. It is a cumbersome and, I think, almost ridiculous machinery.
The Taoiseach: Might I ask the Deputy a question? As one who held the office of Attorney-General, suppose that in his time of office— the time of the Government in which he was Attorney-General—a motion of that sort had to be brought in in the public interest, would they not there and then have devised some machinery to deal with the matter? It is obvious that there would have been some machinery devised.
Mr. Costello: It would be entirely different in the case of misconduct. If there was any question of incapacity and if I had any influence—and I had a little influence with the last Government—my advice would be to pay the man his full salary and let him stay out as long as he likes and pay a substitute, rather than bring this matter before the Dáil. That is so far as incapacity is concerned, and there was a very distinct precedent for that in this country where there was a certain judge who had long since passed his capacity as a judge, and the British Government allowed him to remain on rather than bring the matter before Parliament.
The Taoiseach: Supposing you had a judge who was not prepared to fall in with your views in that regard, then you could not have that remedy. What I want to point out is that it is clear that it was always understood that that would have to be implemented by some sort of machinery of investigation.
Mr. Costello: Yes, I agree on that, but the point I am making at the moment is that getting rid of a judge for incapacity by means of a vote of both Houses is too cumbersome a machinery altogether, in my opinion. The machinery is inappropriate in the question of misconduct because, with all due respect to members of this House and of the Seanad, I do not think that they are a proper tribunal to try a question of misconduct in absentia——
Mr. Costello: ——because that is what is happening, and if you were to have a committee set up, on the lines suggested by Deputy Dillon, such as the Committee of Public Accounts, or something of that sort, it is open to the Dáil afterwards to repudiate that committee.
Mr. Costello: The other point I want  to make is that I think there is only a little more than a fortnight left before the time for constitutional amendment by statute has expired. I think there is no time.
Mr. Costello: That is the very point I am going to emphasise, that any machinery which is not in the Constitution is of no earthly use whatever because if you have the procedure of this select committee agreed upon by this Parliament, let us say, and if there is a general election and a new Government comes in, they may say: “We will have none of this select committee or its machinery,” and unless you have some machinery of a constitutional character already set up, the other thing is not binding on the Government that sets it up and is certainly not binding upon the Government that follows. Therefore, the only adequate manner in which to deal with this matter is by having it in the Constitution, and that is why I put it in here. As I have said, I am not wedded to the machinery I have proposed. I do not like it, but at least it has the advantage of being independent. Deputy Norton, of course, rather sneered at the kind of thing proposed and suggested, if I might put it vulgarly, that dog would not eat dog.
Mr. Costello: But if you cannot rely upon your Supreme Court to give an independent judgment, how much less could you rely on a tribunal such as this House where you have observations of the kind that were made by a Deputy opposite and where you have provocative observations of the kind that are frequently bandied about in this House. I have used the expression “dog” myself, but I suggest that a judge would not have a dog’s chance here once the thing started. The Taoiseach, of course, would start off with the white garb of innocence around him.
Mr. Costello: No, that would be nicely brushed back, but inside of an hour it would be knocked down when Deputy Dillon or I said something provocative. Inside two hours we would be all at each other’s throats about it and the whole issue would be decided purely on a political basis. We would all start out saying with unctuousness that we are all in favour of the independence of the judges. The Prime Minister says we are all in favour of the independence of the judges, but that the machinery that we have at the moment is adequate. I say it is not. But when we get to a right-down, regular, royal now about a particular instance, the independence of the judiciary would vanish and the Party Whips would be  scurrying all over the corridors for the purpose of getting Deputies of every Party to register their votes. I have no doubt that would be the position.
I repeat that the safeguard in the Constitution arises merely from its traditional character, arises from the fact of its not having ever been used in this country either by this Government, the last Government, or the British Government for the last 150 years. That is the sanctity that surrounds this particular safeguard. Once it has been used, or once there has been an attempt to use it, it is gone as a safeguard. If you pass the next fortnight and leave this here, the principle of the independence of a judiciary is a mere catch-cry.
|Bennett, George C.
Benson, Ernest E.
Broderick, William J.
Byrne, Alfred (Junior).
Cosgrave, William T.
Costello, John A.
Dillon, James M.
Dockrell. Henry M.
Doyle, Peadar S.
|Esmonde, John L.
O'Higgins, Thomas F.
O'Sullivan, John M.
Redmond, Bridget M.
Childers, Erskine H
De Valera, Eamon.
Fogarty, Patrick J.
Gorry, Patrick J.
Keane, John J.
Kennedy, Michael J.
Lemass, Seán F.
|Little, Patrick J.
McDevitt, Henry A.
Murphy, Timothy J.
O Briain, Donnchadh.
O Ceallaigh, Seán T.
O'Loghlen, Peter J.
Rice, Brigid M.
Ruttledge, Patrick J.
|Last Updated: 19/05/2011 03:00:53||Page of 16|