Thursday, 29 June 1961
Dáil Eireann Debate
This is a drafting amendment. The only jurisdiction in relation to solicitors which is now exercisable by the Chief Justice, by virtue of subsection 2 of Section 19 of the 1924 Act, is what is called his “traditional” jurisdiction over solicitors as officers of the Court. Up to the passing of the Solicitors (Amendment) Act, 1960, the Chief Justice had an extensive statutory jurisdiction over solicitors, for example, in relation to their admission, appeals against refusal of practising certificate, etc. The 1960 Act transferred all these statutory functions to the President of the High Court. The “traditional” functions of the Chief Justice were expressly preserved by subsection (3) of Section 14 of the Solicitors Act, 1954, and this Amendment will make it clear that it is only these traditional functions which are now exercisable by the Chief Justice.
Mr. Haughey: They are not necessary in this regard. The views of the Incorporated Law Society were fully canvassed when the 1960 Act was  being prepared. This is consequential on the transfer of the powers formerly exercised by the Chief Justice.
Mr. Haughey: The 1960 Act transferred powers which had previously been exercised by the Chief Justice to the President of the High Court. They were statutory functions. The Chief Justice still preserved his inherent traditional jurisdiction. This is to make it clear that it is only that inherent traditional jurisdiction that is still to be exercised by the Chief Justice.
“(4) Where the Chief Justice is of opinion that the conduct of a justice of the District Court has been such  as to bring the administration of justice into disrepute, the Chief Justice may interview the justice privately and inform him of such opinion.”
Subsection (4) of this section, which gives the President of the High Court power to interview a justice and tell him what he thinks of his conduct, was inserted in the Bill because it seemed to the Government to be desirable to have further provision for the unsatisfactory district justice who might conduct his courts quite efficiently but nevertheless in such a way as to bring the administration of justice into disrepute. The Government were thinking in particular of offensive statements made from time to time by district justices and, also, the imposition of ridiculously low fines as an indication of the justice's disagreement with the policy underlying the law. Experience has shown that the formal inquiry provided for by Section 21 of the 1946 Act, that is, an inquiry by a High Court judge, was very often too heavy handed a procedure to invoke in such cases, with the result that the justice escaped the rebuke he should have received. The Government believe the provision will do a lot of good and that is very existence will exercise a moderating influence on justices.
However, there were two respects in which, on reconsideration, it was felt the subsection could be improved. Firstly, it was considered that it might be better if the Chief Justice, rather than the President of the High Court, were to exercise this “reprimand” jurisdiction as well as the more formal jurisdiction under Section 21 of the 1946 Act, enabling him to have the conduct of a justice formally inquired into by a Supreme or High Court judge at the request of the Minister. Secondly, as the section stands, it gives a disciplinary jurisdiction over a district justice only so far as his conduct in the execution of his office in relation to a particular matter is concerned. Thirdly, it was felt that the provisions of subsection (4) were unduly restrictive in that they confined this “reprimand” jurisdiction to the conduct of a justice  in the execution of his office in relation to a particular matter.
Accordingly, the amendment proposes to transfer this jurisdiction from the President of the High Court to the Chief Justice and to enable any conduct of a justice which is such as to bring the administration of justice into disrepute to be the subject of admonition by the Chief Justice. I have consulted both the Chief Justice and the President of the High Court on this matter and I should like to express my appreciation of their co-operation.
Mr. Cosgrave: I think we are all familiar with the occasional lapses of district justices where statements are made which receive a certain amount of publicity, statements which do not in any way assist in the administration of justice. On the other hand, is it wise to adopt a procedure which more or less appoints either the Chief Justice or the President of the High Court—in this case, the Chief Justice—with a type of schoolmaster jurisdiction over justices? If a justice is guilty of a lapse of this sort, he may himself, on reflection, or as a result of contact with his colleagues, realise the desirability of making amends and correcting any error he may have been guilty of and avoiding such occurrence in the future. The point that strikes me is whether it is desirable to impose, in legislation, this power or jurisdiction in the Chief Justice to call justices before him at a particular time.
I understand there is some similar procedure in Britain in regard to justices of the peace or magistrates— but their jurisdiction is probably different and their general system of appointment is different—under which the Lord Chancellor, or somebody appointed by him, exercises somewhat similar functions to those envisaged here. The only question is whether it is considered desirable that this should be included in legislation.
Mr. Sherwin: I agree that there should be some disciplinary power because we are all human, justices or otherwise. Certainly district justices  do lapse from time to time. On occasion, they are fond of making speeches which bear no relation to what is before them and expressing their views like politicians. Another point is that a justice might be in the habit of being under the influence of drink to some extent and indeed all sorts of matters might arise which would require the exercise of this disciplinary power. Justices can err just as much as we can but we have the press and the public to keep us in line and there must be something in their case, too.
Mr. Haughey: First of all, I take it that the House agrees with the proposal in the amendment that these powers should be exercised by the Chief Justice, rather than, as was originally suggested, by the President of the High Court. That is more consistent. The Chief Justice has always had certain traditional jurisdiction by virtue of the fact that he is head of the judiciary. It is more appropriate that he should exercise this particular function as well. I do not think there could be any objection to the proposal. We know that a minority of justices may transgress from time to time and it is desirable that somebody should interview them and point out the error of their ways. The appropriate person to do that is the Chief Justice.
I think I am right in saying that from time to time, even though he had not any particular statutory authority to do so, the Chief Justice on a couple of occasions has actually interviewed district justices informally, at the request of the Minister, along these lines. Now we just want to give a statutory basis for that procedure. A further point which is in the amendment which is not in the original subsection is that we are now widening the procedure. SECTION 11.
The procedure of taking out this Bill in the dark and slipping in in a variety of places an Irish description of the court in the English version of the Bill results in the fantastic situation that in subsection (1) of Section 11, we are told that the High Court exercising criminal jurisdiction shall be known as An Phríomh-Chúirt choiriúil and the Central Criminal Court is in this Bill referred to as the Central Criminal Court. Why you are told in the first half that the court is to be known by a certain title and in the second half you are informed that it is to be called by another title is a mystery to me. This is a new departure. I have never yet seen a definitive section which began by saying that the name of such an institution shall be one thing but in this Act it shall be called something else.
We discussed this pretty extensively in connection with earlier sections of the Bill and I do not know that it is necessary further to underline it except to say that I think this is the kind of procedure which degrades the language and degrades us and denies that the language has a standing in its own right and that, in this country, when we speak English, we speak English and when we speak Irish, we speak Irish. To me, it is a humiliation that it should be thought necessary, by irrelevant provisions in statutes of this kind, to appear to assert that the only basis upon which anybody can be persuaded to speak Irish is by constraining him by statute to do so.
Mr. Haughey: I should like, if I could, to persuade Deputy Dillon that this is not an attempt to degrade in any way the language. This is done in pursuance of a sincere desire on the part of the Government to emphasise the Irish version of these titles. However, as the Leader of the Opposition has pointed out, we discussed this matter very fully on a previous section  and, at this stage, I am afraid we can agree only to disagree.
Mr. Dillon: That may be. There is certainly no excess of familial modesty in this Legislature, Sir. Did I hear a murmur of “Hear, hear” from my right? If not, I think the Parliamentary Secretary's brother-in-law has faltered in his duty.
“(2) (a) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.
(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of the High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court for that purpose shall be exercised by those judges sitting together.”
This amendment makes it clear that several central criminal courts may sit separately at the same time and also  that more than one judge may sit in the court at the same time. There may be a trial of particular importance, for example, a treason trial, where it might be thought desirable to have more than one judge. The necessity for having more than one judge has never in fact arisen and I hope it never will; but if it should, this provision will make it possible to proceed with the trial on that basis.
Mr. Dillon: This is the procedure of sitting in banco. I thought we would be entitled to some more extensive explanation of this standard of procedure. I am not myself familiar with the circumstances in which judges sit in banco. I know under the British jurisdiction it was possible for 15 judges on occasion to preside over a criminal trial—in matters, I think, relating to treason. My recollection is that my own father was tried in Green Street by three judges. I have never heard of any change in our judicial system which rendered that practice under the criminal law impossible. Has there been some change as a result of the First Constitution of 1924 and the Second Constitution of 1937 which had the effect of altering the system, or why is it necessary to bring in a statutory provision now in regard to it, if it was the established practice down the years?
Mr. Haughey: In order to make it clear that it can be done. Remember we are now setting up a central criminal court in fulfilment of the Constitution. If we did not provide here for two or three judges to sit together in a court, it might be thought that they could not so sit. This is for the purpose of making it clear that if occasion ever arises—it is a fairly remote possibility—then it will be possible for two, or three, judges to sit together.
Mr. Sherwin: The judge who tried the recent Constitution case had certain doubts. Is it because there might be similar doubts in future that there is this anxiety to ensure that three judges can try a case?
Mr. Dillon: Deputy Sherwin raises a point. I think the Parliamentary Secretary ought to brief himself better on this matter. The circumstances in which a number of judges can preside in a court of first instance are peculiar. I admit that I am not familiar with them. If we were approaching this for the first time, it would seem manifestly cracked to provide that two judges could preside over a trial in a court of first instance because you would be faced with the problem of what would happen if the two disagreed. Where would you go from there? I do not doubt that in the ordinary course you would have a minimum of three judges. Deputy Cosgrave spoke of a divisional court with two judges.
Mr. Dillon: Three, is it? I can conceive of nothing less calculated to produce speedy justice than a court of first instance presided over by two judges, and I do not doubt that is not contemplated in this section. This section is, however, designed apparently to regularise procedures on which we are not fully informed. I do not think the Parliamentary Secretary is himself fully informed. If that is so, then I should be grateful if, at some stage of this Bill, the Parliamentary Secretary would undertake to get for us a note as to the circumstances in which it is thought possible that more than one  judge would preside in the Central Criminal Court over an ordinary criminal trial because before we legislate positively to make provision for that, we ought at least to know some of the possible circumstances that might make it desirable. These can easily be found in the precedents that exist, but, for the record, they ought to be presented to the House and the House should not be told that we are just making this provision for no particular reason and at a time when we do not believe it is likely ever to be used.
Mr. Haughey: I do not mind informing myself as fully as possible on any particular subject but I cannot see that there is anything more in this than meets the eye. First of all, we are setting up a Central Criminal Court. Paragraph (a) of the proposed new subsection (2) makes it absolutely clear that you can have more than one Central Criminal Court sitting at the same time.
Mr. Haughey: No cavil about that —all right. The second thing is that we want to make it clear that if the President of the High Court thinks at any time that it would be desirable to have a court presided over by more than one judge he may do so. That is all. We are merely giving that discretion and jurisdiction.
I certainly do not mind doing some research and finding out precedents or the history of the occasions in the past on which this sort of court has been set up or what sorts of trials have been presided over by more than one judge. That would be interesting and possibly might have some bearing on our deliberations here, but not necessarily so, because it would be a matter for the President of the High Court in future to decide what he shall do about any particular trial. All we are doing here is giving him the jurisdiction to do that, if he thinks it desirable.
Mr. Dillon: My problem about this is that the Central Criminal Court means to me that a man is arraigned on indictment and is brought before the court to consist of 12 jurymen, with a judge to see fair play, and at the end of the argument the picture I envisage is a judge with detachment charging the jury and then 12 jurymen retiring to the jury room and returning ultimately with a verdict of “guilty” or “not guilty”. I find it extremely difficult to follow the possibility of such a criminal trial being conducted by two or three judges. Do the three judges charge the jury or do they go into a huddle and agree on a charge? At once my whole concept of the functioning of the Central Criminal Court becomes confused, if a criminal trial can be presided over by more than one judge. The Parliamentary Secretary may on inquiry find that the criminal jurisdiction does provide for some other kind of trial in particular kinds of cases. I do not know. Can any Deputy here feel with me that it is an incongruous kind of picture to envisage three judges or two judges presiding over a jury trial in the Central Criminal Court? Who charges the jury?
As I say, I do not doubt there is some explanation of that seeming incongruity but if we are to legislate intelligently, I do not think we should slip subsections like this by without raising the query in what circumstances does the Parliamentary Secretary believe the powers under subsection (2) (b) could ever be used? If he comes back and says there is such an institution as trial in banco, trial by judges, and it is not envisaged here that the exercise of this criminal jurisdiction by more than one judge would be in the context of an ordinary criminal trial by judge and jury, then we would know where we stand but we do not at present.
Mr. Haughey: Since it happened that in a very important treason trial of that nature it was decided that we should have trial at Bar by a number of judges, it is possible to conceive that the need for such a trial might arise again in treason or any other trials and all we are doing is simply providing that if the President of the High Court decides that it is desirable or necessary, he has the power and the jurisdiction to do so.
With regard to the subsidiary matters Deputy Dillon raised, such as the question of who charges the jury and all that sort thing, that of course would be taken care of by the Rules of Court. The procedure laid down in the Rules of Court governs all that kind of thing.
Mr. Dillon: It is perfectly reasonable to say that this House is not to be told that this will be all settled by the Rules of Court. I do not think I am being extravagant when I say that ordinary legislators in this House understand a criminal trial to be a trial of a citizen by 12 of his fellow citizens in a jury presided over by a Criminal Court judge. If there is to be a departure from that and a provision in the Bill for a departure from that, all I am asking is that we should be told what the circumstances are in which such a departure could arise. The Parliamentary Secretary, seeking to assist, pulled the Casement trial out of his memory and caused Deputy Cosgrave grave  concern. He says that if there is no better precedent than that, we demur. I am sure there are good reasons for this but I should like to hear them.
Mr. Sherwin: I can see Deputy Dillon's point as to who charges the jury because the person who charges the jury can convince the jury. Apart from the Casement case, I can remember many similar cases such as the Dreyfus case in France where there was a definite desire to railroad a man. Supposing a man were to be charged with treason and there were political implications and the authorities considered that by appointing three judges with a certain political tinge, the issue would be decided in accordance with their desire. It is in the power of the High Court judge to decide whether there shall be three or one.
Mr. Sherwin: It does not matter what you call him. Every man has political opinions, even judges. In certain issues, he might think it would go better for his way of thinking if he appointed three than if he left the case to one judge and a jury. There could be grounds for accusing the President of the High Court if the case went against the accused.
Mr. Haughey: Surely, if there is any validity in that argument and you had a President of the High Court—heaven forbid—who wanted a certain political effect achieved, would it not be far easier for him to do it with one judge rather than three?
Mr. Haughey: Just to conclude, may I say that Section 36 of the Courts of Justice Act, 1924, lays down the various things that shall be governed by Rules of Court and specifically says “pleading, practice and procedure  generally in all criminal cases before the Central Criminal Court or any court of the High Court Circuit or the Court of Criminal Appeal”. So that it is absolutely clear that all matters of charging the jury and all matters of procedure are governed by rules of court and must necessarily be governed by such rules.
With regard to the proposal generally, as I say we simply want to ensure that if it is thought desirable by the President of the High Court for any reason—and the reason that most naturally comes to mind, of course, is a trial which would be of great national importance and the President might think the issues so fundamental and important that it would be desirable— to have more than one judge presiding, he can do so. We are simply stipulating that he has that power. That power has been there before and we are making it clear in this amendment that it will continue to exist in future.
Mr. Sherwin: I wonder is the Parliamentary Secretary aware of Napoleon's dictum that one bad general is better than two good ones? He may be a bad general but no politics would enter into it. It has been laid down, at any rate, that one bad general is better than two good ones.
Mr. Haughey: I think the House will agree that amendment No. 38 is hardly necessary. This subsection deals with the exercise by the Master and other principal officers of the Supreme and High Court of limited functions of a judicial nature. It was drafted in consultation with the Superior Courts Rules Committee with particular reference to the constitutional implications.
Article 37 of the Constitution allows for the exercise of “limited functions and powers of a judicial nature, in matters other than criminal matters”, by a person or body of persons “who is not a judge or a court appointed or established as such under this Constitution”. Any power to deal with matters relating to the liberty of the person cannot be said to be a limited power which could be delegated to non-judges. I do not think the amendment is necessary.
Mr. Dillon: I suppose the amendment is proposed in order to avoid the possibility of the subject matter of the Bill being impugned before the High Court as not being in conformity with the Constitution on the same ground as the Solicitors Act was overthrown, that was, that it was proposed to delegate to a person other than a judicial person the same functions in relation to the liberty of the person and the danger was that the Supreme Court would take the view that it was a breach of the Constitution.
Mr. Haughey: Deputy McGilligan's amendment proposes to delete the words “or matters relating to the liberty of the person.” Our subsection refers to “not being criminal proceedings or matters”. If Deputy McGilligan's amendment were accepted it might mean that rules of court might govern matters relating to the liberty of the person.
Amendment No. 40 not moved.
Question proposed: “That Section 16 stand part of the Bill.”
Mr. Dillon: Why are we restricting the number of ordinary judges of a circuit court to not more than eight?
Mr. Haughey: We have to specify the number by law. We are proposing that it shall not be more than eight. It could be less if the areas were rearranged and it was found that we could do with less. As the Bill is framed, the Government can reduce the number without any further legislation but if we accept Deputy  O'Higgins's amendment the number could not be reduced without legislation. I think the way it is done in the Bill is the best way.
Mr. Cosgrave: Must there be statutory fixation of the number?
Mr. Haughey: Yes. We are setting up the courts as provided in the Constitution and we must fix the numbers by law.
Mr. Dillon: It is a strange section which begins by saying that the number of ordinary judges of the circuit court shall not be more than eight in subsection (1) and in subsection (2): “If, on the operative date, there are nine ordinary judges.”
Mr. Booth: Until a vacancy occurs.
Mr. Haughey: That is to get over a temporary problem which arises.
Mr. Dillon: All right.
Question put and agreed to.
Mr. Booth: I move amendment No. 41:
In subsection (2) (a), line 29, after “barrister” to add “or solicitor”.
This amendment refers to subsection (2) (a) of Section 17 which refers to the qualifications required for appointment as a judge in the circuit court. As drafted it refers to the qualification of getting a practising barrister of not less than 10 years' standing. My amendment proposes that we shall add the words “or solicitor” after the word “barrister”. There are a number of solicitors who have built up very considerable practices in the circuit courts. Solicitors have the right of audience in the circuit court and not only can but do practise fairly extensively in the circuit court without the assistance of counsel. I feel that the solicitors' profession should not automatically be disqualified from membership of the bench of the circuit court. The tradition in this regard is really without any foundation. I do not know whether in future the Government might ever see fit to appoint a solicitor as a  judge of the circuit court, but of course my amendment would not oblige them to do so. Consequently, this would be an enabling provision simply enabling the Government, if they find a suitable solicitor with suitable qualifications, to appoint him to this office. I believe this would be welcomed generally, not only in the profession but by members of the public as well.
Mr. Haughey: The issue here, of course, is a very net one. I have had representations from the Incorporated Law Society in this matter. I was very reluctant indeed to have to refuse to accept what they had to say. In connection with this Bill and other matters, particularly in regard to the Solicitors Amendment Act, 1960, I found myself coming into contact a very great deal with the solicitors' profession and the Council of the Incorporated Law Society. I came to have a very high regard for that body. When they made a suggestion to me on this particular point, knowing them as I do and knowing the standards they try to maintain in the profession, naturally I examined it very sympathetically.
Indeed, the solicitors made another suggestion at that time—that the statutory right which they had to be heard in the circuit court should be preserved. I was very glad to be able to accede to that request. But, as Deputy Booth very rightly indicated, there is a tradition about this matter. Traditionally, only barristers are appointed to the circuit court. That is not alone the way here but the way in Great Britain and the Six Counties. There, of course, the corresponding courts are the county courts.
The Government have given full consideration, indeed sympathetic consideration, to this proposal but find themselves, unfortunately, not able to agree to upset the existing position in this regard. It is not suggested at all, I think, by anybody that a solicitor of long standing and experience and wide practice would not in certain circumstances make an excellent circuit court judge. But in all these matters where the legal professions are concerned, the House will agree we must have very  great regard for traditional practice and precedents. As this is a firmly entrenched precedent, I think the Government rightly, though rather reluctantly, decided they could not agree to this proposal by the solicitors' profession.
Mr. S. Flanagan: I can sympathise with Deputy Booth's point of view. One must accept there is a very strong tradition in regard to the appointment of circuit court judges. There ought to be an equally strong tradition in the district court against appointing barristers to the district court bench at all. In other words, if the Government feel, and they do, that only barristers should be appointed to the circuit court, then I think they should appoint only solicitors to the district court. That particularly applies to practice in the court. It is seldom that a barrister with experience nearly altogether of Dublin work who is appointed a district justice down the country can be regarded as successful.
From time to time the Bar Council tried to eat into any privileges we had. Certain methods were adopted to try to squeeze solicitors out of their right of audience in the circuit court. There were ways and means of persuading them, by adverse decisions and otherwise, that it was not safe for them to try to exercise their right in the circuit court with the result that they had to employ counsel in cases where it really was not necessary, where the matter was simple and straightforward and could be dealt with by any reasonably competent solicitor, thereby increasing the cost of litigation to the client.
If the Government and Parliamentary Secretary cannot meet us on this point—and I am prepared to accept they cannot—I think they should do everything possible to ensure that the district court bench is left to the solicitors' profession and that the solicitors' right of audience is preserved in fact as well as in theory.
Mr. Sherwin: I know I am sticking my neck out by intervening in this family row. Just like politicans there are vested interests here, too. Here you have the solicitors trying to  claim rights at present given to barristers in the circuit court.
Mr. Haughey: They always were.
Mr. Sherwin: I know of cases where judges refused to hear solicitors and the poor person had to brief counsel when there was no need for it. Counsel's costs were about £40 whereas a solicitor would require only half of that. I am not in this profession myself. But I mix around and I take a little interest in this matter. I am very fond of history which is connected with it. I believe there are very clever solicitors and they should not be deprived of opportunity in this democratic age. There is too much of the craft union set-up about it. Only barristers' sons may become apprentices and so on. In my opinion, solicitors should have this right. But if they are denied it, they ought to have the exclusive right of appointment to the district court bench.
I am against this business of certain preserves for certain people. In my own way I was up against that sort of thing. Later, some of the people said “Sherwin is a great fellow. We thought he was a dud.” Whether I am or not, perhaps the same thing could be applied to solicitors. They might make very fine judges. In this democratic age, there should be no barriers for anyone attaining to better himself. There was a saying during the French Revolution “There is a marshal's baton in your knapsack.” We should apply that to all walks of life here.
Mr. Lindsay: I do not think this matter really falls within the ambit of our discussions at all—that only solicitors be appointed to the district court. There are in all about 60 judicial appointments. Of that 60, only 20 are exclusively reserved for practising barristers in the Supreme Court, the High Court and the circuit court and the remaining appointments— roughly 40; I am not absolutely certain of these figures—are for the district court. Of those appointments, many will be solicitors. No percentage  of that 40 is reserved for barristers against solicitors. Therefore, under the existing scheme of things, the solicitors have a very fair advantage. It might be thought there is a sort of vested interest in reserving certain traditional appointments to the Supreme Court, the High Court and the Circuit Court for practising barristers. It is not really that. It is the question of experience of the type of courts to which barristers are accustomed. That does not mean that solicitors are not as practised or as capable in their own sphere but, by and large, the existing system works out very well and, on a percentage basis, as the figures stand, solicitors, having regard to their experience and the kind of work which they do in the various districts in the country and in the cities and towns, have a considerably higher outlet for preferment than have practising barristers.
Major de Valera: Perhaps I might preface my remarks by saying that in the past, having had considerable experience of the judicial system and having no immediate or present interest in the matter, my comments might be taken as impartial. The essential reason for the appointment of barristers to the higher courts goes much deeper than merely a reservation to the particular branch of the profession. One has only to look at the essential difference between barristers and solicitors to see what is involved. In our legal system, there are in the first instance, solicitors, who are lawyers, who have a good basic legal training and who are mainly the administrative organ of the profession. They are competent to deal as general practitioners with ordinary routine criminal and certain civil cases. However, their main preoccupation is the organisation of legal work, dealing with the mechanics of legal work, the preparation of cases for court, the briefing of the expert consultants whom they bring in to plead for them. That is the rôle of the solicitor. It is an extremely important rôle from the points of view of the client, the State and the system.
It should be clearly understood that the rôle of solicitor is a rôle in itself.  The rôle of the barrister—and the layman sometimes confuses this—is a different thing. The role of the barrister is to be, as the old phrase goes, “learned in the law”. He is a specialist in law. He is a specialist in pleading and in being a legal adviser. His essential usefulness and his essential rôle in the system is in being just that, the advocate and the adviser, the dispassionate adviser who is briefed by the solicitor and who is saved all the administrative work which is done by the solicitor. The team of the barrister and solicitor together constitute the instrument, the means by which a client can defend and assert his legal rights in court or elsewhere. It is essential to grasp that difference, that the barrister is a specialist, a specialist adviser, a specialist in advocacy while the solicitor is a general practitioner who has a most important role in organising cases, the administrative and business side, and so forth.
Let us take that background and apply it to the question of judicial appointments. The work of the district court is largely concerned with criminal cases of a routine nature, criminal cases which are not on indictment, and with a limited type of civil jurisdiction. The solicitor, within his knowledge and competence, is completely capable of dealing with that type of case and very often does not require and does not brief counsel for the work involved there. Therefore it is very fit and proper that no distinction should be made between the solicitor and the barrister in regard to eligibility for appointment to be a judge of that court, that is, to be a district justice. The actual position is that both are equally eligible and that the authorities when making appointments have regard to personal suitability, and all the rest of it, for the job but take the qualification of being either a barrister or a solicitor to be sufficient without reference to the branch of the profession to which they belong. That is so for the district court.
The situation is totally different for the circuit court and the higher courts. In the case of the circuit court the criminal jurisdiction is wider and the civil jurisdiction is wider. The  court is competent to deal with a large range of legal matters and in fact it is the usual practice for solicitors to brief barristers on behalf of their clients and to have the cases conducted in that court by barristers. That is done because in that court the cases that arise have such implications in law and require such standards of preparation and advocacy that a barrister, a specialist, is needed.
Reverse that and put yourself in the position of the judge sitting on the bench in the circuit court. Matters of law, particularly in modern times, if any degree of certainty is to be achieved in regard to them, require a great deal of specialised study which can be done only by a barrister. A busy solicitor, apart from the fact that he could not do his work and keep up with that specialist end of it, would not be in a position to make up individual cases no matter how well he was prepared. Therefore, having regard to what is going on in the courts, it is not only reasonable but compellable that the judge sitting on the bench should be competent to deal with that case in the first instance, even if there is an appeal.
I shall not elaborate on that argument any further. I think that anyone who reflects on it will see that points of common law, statute law and equity in the circuit court raise extremely difficult matters of law. If there is not to be an automatic appeal to a higher court, the judge trying the case must have competence to deal with the matter. In those circumstances, one sees why it has been the universal practice to appoint a barrister to that court rather than a solicitor. It is not a question of a closed shop. It is not a question of preference for one branch of the profession over another.
It is a question of technical competence. If that technical competence is not in the court of first instance, it can mean only one of two things. If the technical competence is not there, it can only mean inefficiency, perhaps, wrong decisions or else an appeal mechanism that will involve almost impossible delays  and costs as a matter of course. So much for the circuit court.
Let us consider the High Court and the Supreme Court. It is quite clear that the projection of that argument indicates, quite apart from the consideration of the closed shop, that they are technical appointments for barristers under our present system. I have tried to explain the matter on this basis because sometimes, I think, laymen are under a misapprehension as to what is involved and the importance from the layman's point of view of having competent judges in the courts and properly conditioned judges.
Experience is another thing that comes into play here. For the higher courts such as the High Court, the Supreme Court and the Circuit Court, a practising barrister is the condition for appointment, a practising barrister of sufficient number of years standing. In fact, the people appointed to these posts have gained a terrific amount of experience in just the matters they will be called to decide. It is really only the barrister in his experience in the court who can in the nature of things and in the actual working out of them acquire the experience. It is the practising barrister who is actually dealing with these matters by pleading them and who, when he becomes a judge, will have to decide on these matters. No amount of theoretical consideration can compensate for the experience so gleaned and the knowledge that is so acquired in the specialisation which goes with that branch of the profession.
I have spoken somewhat at length but I think it is no harm to say these things. I stood up to say them because I have no longer, shall I say, any particular interest in the matter. Thus, perhaps, I can say them more freely than other members of the House who would know what the situation is.
I should like to conclude these few remarks with this. What I have said is in regard to the present system. There are other possibilities. You can have laymen judges with technical advisers and all that. I am not widening the field to that. I am taking the present  system where judges are appointed. Judges have to be not only human beings in the broad sense but have to be experts as well. I think that, in the nature of things, this must be reserved to the barrister.
Mr. Booth: I cannot claim to be really impartial in this. I do not think I am any more impartial than Deputy de Valera. He is one who has been practising at the bar and I am one who previously practised as a member of the solicitors' profession. I think he has misdirected himself on the main point. When moving this amendment, I was trying to explain my view in regard to solicitors having the right of audience in the circuit court. There are some who will have at least as much experience of circuit court practice and procedure as any barrister. There may not be any such at this precise moment, but it is at least possible that there will be at some subsequent time.
Deputy de Valera did not really agree with the Parliamentary Secretary because there was a complete conflict of views there. As I understand the Parliamentary Secretary, the Government's view on this matter is based very largely on the desirability of maintaining rather than breaking with tradition. The Parliamentary Secretary did not state for a moment that the decision was based on the suitability of a solicitor as a circuit court judge but simply that the tradition was of long standing and he was reluctant to break it.
At the same time, we must remember that the tradition has been built up over many years during a large proportion of which a solicitor had not got the right of audience in the circuit court or what was previously the County Court. Where tradition has been built up which is not of itself a reasonable one, I do not feel that the Government are justified in maintaining it simply because it is the tradition. I would have more sympathy in a way with Deputy de Valera's view if I could accept it, which, incidentally, I cannot.
He spoke about the comparative knowledge of the law. I would not agree with that for a moment, believing, as I do, that the difficulty of qualifying  for a solicitor is very much greater than the difficulty of qualifying as a member of the Bar. I agree that there is a specialisation at the Bar and that whatever the basic knowledge of the law may be, it is more frequently the members of the Bar who study legal decisions and who are more versed in the legal precedents than members of the solicitors' profession.
Any solicitor who was regularly exercising his right of audience in the circuit court would be well versed in circuit court procedure and practice in regard to the criminal, common law and equity sides. I think it is quite incorrect to say that simply because a man is a solicitor rather than a barrister, he cannot have the same suitability.
I do not know whether there is any point in asking the Parliamentary Secretary to reconsider this matter but I would ask him to find out, as I think is the case, whether the solicitors' profession have not already made considerable progress in England in advancing their claim to a similar right. Simply because barristers in Great Britain have not the right of being appointed to the county court bench is no good reason for our not considering doing so here. Somebody has to do it first. I think a very reasonable step would be taken here if we did this first and gave this right to the solicitors' profession.
Mr. Sherwin: As the only layman here, I should like to make a few remarks. Deputy de Valera referred to the need for technical competence but who is to say whether a solicitor——
Mr. Haughey: I want to claim also that I am a layman.
Mr. Sherwin: The Parliamentary Secretary has certain legal training, I understand. Who is to judge whether a solicitor has or has not technical competence? If a solicitor does not get an opportunity of submitting himself to some examination, it is not just to say he has not the technical competence. A solicitor may have ambition and no barrier should be placed in his way. He may have trained himself. As I say, a man may have ambition. Lincoln was a world  figure but lots of people thought he was a “galoot”. He was a man touched with genius.
On principle, I am against this business. A man should be given an opportunity to prove his worth. Nobody should judge without some proof. That is just the point I want to make. I am against the whole business of partition: I am suspect on that word, too. It is a racket. At one time, only a man of blue blood could be a lord. They have got away from that. We have to get away from all those things. They are really a wrong in order to preserve a vested interest.
Mr. Haughey: If tradition is a wrong, the Deputy will also admit there are certain traditional wrongs.
Major de Valera: In regard to Deputy Sherwin's last remark, there is one thing I should like to point out to the House in regard to solicitors and barristers. It is that anybody— admittedly, there are certain fees to be paid—without distinction, can become a barrister or a solicitor, if he is of good character. There are many occupations and trades in this country and in other countries of which that cannot be said, so let Deputy Sherwin sheer off that side.
Mr. Sherwin: Ten years' practice is a snag there.
Major de Valera: Anybody, a poor man, a rich man, anybody's son, can become a barrister or a solicitor in this country, if he has the ability and wins his way. There is no closed shop and that goes for a number of other professions that are often attacked, too.
Mr. Lindsay: Like the medical people.
Major de Valera: To come back to the point, Deputy Booth and myself are not quite ad idem. I completely agree with Deputy Booth as regards the basic qualification—completely. As regards the qualification—again, I think I was careful. I shall look up the note of what I said to cover myself on that. I think, as Deputy Booth pointed out, that it is open in a particular  case to appoint a solicitor even to the circuit court as things stand. I do not know : I have not checked that.
Mr. Haughey: It is not. That is the whole point.
Major de Valera: All right; it is not. Even if it were, there is the general over-all situation and it boils down to this. No matter what practice a solicitor has in the circuit court, many of them invariably, as a matter of practice and as a matter of necessity, have to brief counsel when it comes to any matter involving law or complexity in regard to law and indeed complexity in regard to pleading. It is because of that, when I put the matter in reverse, that I make the case why it should be a barrister on the bench. This is the man who will have to deal with it. Deputy Sherwin mentioned 10 years. That is the point of experience. If he has not that experience, it can only mean involving the client in automatic appeals.
Mr. Sherwin: “For the time being.” You can practise for five minutes. You have to be a barrister of 10 or 12 years' standing, that is, you become a barrister. You do nothing. You go into the Law Library for a few minutes and you can become a High Court judge. Deputy McGilligan can verify that.
Major de Valera: The Deputy is getting away from the point.
Mr. McGilligan: He is on the point.
Major de Valera: The essential point why it should be a barrister is this. I have seen complicated Land Commission cases in the circuit court, cases that have ultimately gone to the Supreme Court on a case stated. I have seen complicated equity cases where the rights and the complications of law were all that could arise in one of the higher courts, the only difference being that the amount involved was small and that the case went to the circuit court in order to save expense and give the client a quick and relatively cheap relief. That case would have to go to the higher courts because of the complexity of interpretation in,  say, equity, or a will case or something like that. These are all matters which occur on the average, I should say, quite frequently. When I knew workmen's compensation cases—I do not know what has happened since— they were the same fruitful source of litigation. In all of these cases, the experience, the specialised knowledge and the specialised preparation of the barrister is in direct relation to the bench and the functions of the bench, such as is not the position with a solicitor.
I am not in any way attempting or pretending either to underrate the solicitor's knowledge or to underrate his competence or his excellence. In fact, I do agree that in many ways he gets a more thorough training than the barrister but the barrister's real training comes with his experience, as Deputy Booth will know very well. I feel that these points should be made and should be understood. Unless you change the whole system—and there I cover myself again and I would be prepared to argue a wider matter with Deputy Sherwin—I think you are compelled, in the nature of things, to keep to what has essentially been happening here.
Mr. Haughey: We are concerned here and the Government are concerned with getting the best people as judges. I think that should be the main objective and the principal aim. To start discussing the qualifications which a judge should have is to open up a vast field. I suppose the perfect judge would have a very rare combination of qualities. He should be a man of very considerable knowledge of affairs; a man familiar with the social structure of the country ; a man of experience in legal matters ; a man fully qualified in law; a man of wisdom ; a man of commonsense and a man of humanity. All these qualities, I think, go to the making up of what we might call a judicial personage. I think the overall requirement we would like to see in judges is that they should be judicial. I think we might all personally know a solicitor who would have this combination of qualities and who would be suited to be appointed to the  circuit court bench, but the tradition is—and it is not just because it is the tradition that we are accepting it— that the circuit court bench should be reserved exclusively for barristers.
That tradition is based on a very sound principle to which Deputy de Valera referred. The circuit court is more concerned with the law than, for instance, the district court where you have a great many factors of one sort or another in the cases coming before it and indeed, where to a certain extent, the law is not the paramount factor. Because the sort of person required on the circuit court bench must primarily be a specialist in law and trained in legal affairs, these appointments to this court have been traditionallly reserved to barristers. It is for that reason that the Government propose to adhere to the tradition, while at the same time admitting and saying that they are with reluctance turning down representations made by the solicitors' profession because they realise that in certain circumstances you could get a perfect judge from the solicitors' profession. I have a lot of sympathy with what Deputy Flanagan said about the district court. We must all agree that there is a good deal of force in his argument that in rural areas a solicitor is quite likely to make a better district justice than a barrister.
Mr. Lindsay: Except a circuit-going barrister.
Mr. Haughey: Possibly except a circuit-going barrister. That may come in time. The barrister members of this House, I think, would be prepared at some future time to contemplate a situation in which that would happen, where we would decide as a matter of policy that only solicitors should be appointed to the district court. I do not think it is necessary to stipulate it in an Act of Parliament. That is the sort of thing that would come about by practice and precedent. It is true to say that by far the greater number of these appointments at the moment are made from the ranks of the solicitors' profession.  A time may come when the district court could be reserved exclusively for solicitors but I do not think it desirable to do it at this stage.
With regard to Deputy Sherwin's point, we will, by virtue of amendment No. 83, put a new section, Section 56, into the Bill, which will clearly lay down the statutory rights of solicitors to be heard in the circuit court. The solicitor has always had that right but there was some doubt as to whether we were continuing it in this Bill and so we are specifically laying it down. I have no doubt that the courts will have due regard to the wishes of the Oireachtas in this matter. I could not accept that there could be any situation whereby circuit court judges would make clear their disapproval of solicitors appearing before them by the type of decision they might give. That is too dreadful to contemplate. I am confident that when we lay it down that it is the wish of the Oireachtas that solicitors have that right, that will be the end of the matter.
May I, sitting here, as it were, on the one hand, between the representatives of the solicitors' profession and on the other, the eminent practitioners at the Bar, throw out a suggestion which may bear fruit in time? Something which both professions might think about and which would solve all our difficulties is if some day we looked forward to the amalgamation of both professions. I do not know whether an objective of that nature would recommend itself to either of the two professions, or indeed whether there is any thinking along those lines current at the moment. However, it is something which is well worth examining and which we may look forward to at some stage in future.
Mr. Sherwin: I doubt it.
Mr. Booth: I am prepared, with permission, to withdraw this amendment. We have had a good chance of airing our views and in view of the decision conveyed to the House by the Parliamentary Secretary, I do not propose to press it.
Amendment, by leave, withdrawn.
Mr. T.F. O'Higgins: I move amendment No. 42:
In subsection (2) (a), to add to the paragraph “or as President of the Circuit Court.”
The purpose of this amendment is to seek to clarify the position. I take it that the intention is as it always has been since the post was created, that a practising member of the Bar of ten years' standing may be appointed President of the Circuit Court. If that is correct, the object of the amendment is to ensure that that will be expressly stated in subsection (2) (a). The subsection as it reads at the moment is open to the interpretation that a practising barrister of not less than 10 years' standing shall be qualified only for appointment as a judge of the circuit court.
I do not think it would be desirable or proper that the presidency of the circuit court should be confined to existing circuit court judges. In all probability, when there is a vacancy, the President will in fact be appointed from amongst the existing circuit court judges but I do not think it should be confined.
Mr. Haughey: I fully agree with Deputy O'Higgins that it is not desirable that appointment of the President of the Circuit Court should be confined to the existing circuit court judges. In fact, it is our intention that any barrister of ten years' standing should be qualified for appointment directly to the position of President of the Circuit Court. I think we achieve that in the Bill as it stands. If the Deputy and the House will look at Section 4 of the Courts (Establishment and Constitution) Bill, they will see that subsection (2) states that the circuit court shall be constituted of the following judges —(a) a judge, who shall be styled “Uachtarán na Cúirte Cuarda” (“The President of the Circuit Court”). So that the term “judge” clearly includes the President. Therefore when we look at subsection (2) (a) of Section 17 of the Courts (Supplemental Provisions) Bill which states that a person who is for the time being a practising barrister of not less than 10 years' standing shall be qualified as a judge of the circuit  court, and relate that to Section 4 of the other Bill, it is quite clear that the phrase in subsection (2) (a) “judge of the Circuit Court” includes the President of the Circuit Court and therefore a barrister of ten years' standing who is not necessarily a judge of the circuit court can be appointed President of the Circuit Court.
Mr. T.F. O'Higgins: Is the Parliamentary Secretary so advised?
Mr. Haughey: I am.
Mr. Lindsay: One small point occurs to me in regard to the Presidency of the Circuit Court. As I understand it, the President of the Circuit Court ex officio may sit as a judge of the High Court. Take a situation where a person is appointed a judge of the circuit court and made President of the Circuit Court the next day, or within a matter of months.
Mr. Haughey: Or even directly.
Mr. Lindsay: Or even directly. He is thus a judge ex officio of the High Court, with possibly only ten years' standing as a practising barrister whereas, in order to become a judge of the High Court, one must be 12 years practising as a barrister. I do not know whether or not the point is valid, but it might possibly be clarified on further examination.
Mr. Haughey: The point is a perfectly valid one. It could happen. The only thing I can say is that it is most unlikely. I do not think it is anything we need worry about. We must in these matters rely on the good sense of Government, on precedents, tradition, and so on.
Mr. Lindsay: It would be very easy for a slip to occur. There might be somebody whom the Government particularly wishes to favour with only ten years' standing as a barrister who might be made President of the Circuit Court. It might happen, through inadvertence possibly, that he might be called on to act as a judge of the High Court, in which case I, or anybody else, could walk in and say: “Mr. Justice So-and-So, you have no jurisdiction  to try this case. You are not a qualified person.”
Mr. Haughey: There is no validity in that point. I thought the point was that, in order to be appointed a judge of the High Court, one must have 12 years' practice whereas one might slip in this way and become an additional judge of the High Court with only ten years' practice. I thought the suggestion was we should make it ten years in both cases. It is true the President of the Circuit Court, with only ten years' practice, could become an additional judge of the High Court but his qualifications to act ex officio could not be challenged on that ground because the stipulation governing 12 years' practice applies exclusively to appointment to the High Court.
Mr. Lindsay: I still think the point is worth looking at. It is an argument against having that system.
Mr. T.F. O'Higgins: I would regard the qualification for being a judge of the High Court as either 12 years' practice at the Bar or the fact that the person is President of the Circuit Court.
Mr. Haughey: The position is that it is possible to promote a circuit court judge to the High Court.
Mr. O'Malley: Can a junior counsel become a judge?
Mr. Lindsay: Of course.
Mr. Haughey: Yes.
Mr. O'Malley: Being a layman, and not having read the Bill, could the Parliamentary Secretary enlighten me on one point? Is it ten years' standing or ten years' practising?
Mr. Haughey: We have had this out before.
Mr. O'Malley: I could appoint Deputy Major de Valera.
Mr. Lindsay: From his particular office at the moment, yes.
Mr. O'Malley: Let me say I sincerely hope that some day I will be in a position to appoint him. It is  standing then, but you must be practising at the particular point in time.
Mr. McGilligan: For a week or two.
Amendment, by leave, withdrawn.
Mr. Booth: I move amendment No. 43:
To delete subsection (2) (b).
I think the case for the deletion of subsection (2) (b) of Section 17 has been strengthened by some of the Parliamentary Secretary's remarks on a previous amendment of mine. He stated quite clearly that, in his view, while there was a considerable chance of legal complexity in cases heard before the circuit court the law was not, I think he said, paramount or predominant in the district court. I do not think he meant any disrespect towards the district court. The fact is, of course, that points of law are not as a general rule raised in the district court. The majority of cases are minor in content—illegal parking, drunk and disorderly, or just drunk, and so forth. While a solicitor, even though practising for many years, in the circuit court, is not deemed the most suitable person for appointment to the circuit court, similarly a barrister or solicitor appointed to the district court is not the most suitable person for promotion to the circuit court. He should, I think, be disqualified from acting as a circuit court judge. The practice and procedure in the district court is entirely different from that of the circuit court and would, in fact, be very poor preparation for promotion to that court.
In principle, I am against judicial promotion. It is a dangerous practice. It is far better to appoint a level headed solicitor or barrister to the district court—it is a position of standing and some financial substance—and leave him there. Promotion to the circuit court would create a dangerous precedent. The experience gained in the district court is not a suitable preparation for the circuit court bench.
Mr. T.F. O'Higgins: Deputy Booth has said pretty well what I intended to say on this amendment. I think we should recognise that promotion in this  field is undesirable. Under the Constitution there is clear recognition of the separation of the Legislature, the Executive and the Judiciary. Where there is a written Constitution, it is of the utmost importance that the persons appointed to judicial office should be removed from the temptation of seeking the goodwill of the Executive. In this subsection there is a facility which would permit a person who accepted appointment as a district justice to look forward to the day when he could, as a result of a favourable decision, be appointed by the Government to the circuit court bench.
I ask the Parliamentary Secretary to reflect on what might be involved if that kind of procedure were permitted. It would mean that a judicial officer, a district justice, who sought promotion—if the opportunity is there promotion undoubtedly will be sought— would inevitably seek to make himself pleasing to the Government and bring himself to the notice of the Government. I think that could lead to a lot of very undesirable results and I am firmly of the opinion that when a person is honoured by the President at the instance of the Government and is appointed to an honoured judicial position, he should go in to do his job as a justice or as a judge, in the belief that he is going to remain until such time as he retires or dies.
I remember reading some years ago a description by Professor Lasky of how the judicial system operates in England. He said that a judge appointed to the Bench ordinarily for the first three years gave his judgments fully convinced that he was wrong and for the next three years he gave his judgments fully convinced that he was right, but that after that, until he died or retired, he gave his judgments irrespective of whether he was right or wrong. That is the type of way in which a judge should function. Certainly, it would be most undesirable that a judge, whoever he might be, should have one eye on the facts of the case and another eye on the effect his decision is likely to have.
Major de Valera: I should like, for  once, to support the general principle Deputy O'Higgins is advocating here. The danger, looking at it in the present modern context, does not come so much from the danger of incurring political favour with a Government or looking to a Government or the temptation to please a particular Government. There is much more subtle danger involved, the danger of being well got with the administrative machine, the danger of being the victim of a fear that if they differ with the administrative machine and the Executive or the Minister rather than the titular Executive at the top, they will be classed as difficult people, or something like that, and that it is easier to take the line in accordance with the administrative machine and life will not only be easier, but prospects better. That is the danger in regard to the lower court, in fact, in the modern context.
I am not taking away from the danger in principle that Deputy O'Higgins has mentioned in regard to promotion. It is a very difficult problem, especially when you go higher. If you accept the principle of promotion of judicial appointments, I find it very hard to get away from the danger there is to the independence of the judiciary, embracing all judges and justices in the term “judiciary”. It is extremely difficult to maintain that principle if the judiciary are in that way dependent on the Executive and the only way I can see out of that is the traditional way, that is, to pay all judges sufficient and to give them sufficient status to compensate for the finality of the original appointment. That goes particularly for appointment from one court to another.
I do confess I see grave difficulty in the appointment to some of the higher offices like appointments as President of some court or other, Chief Justice, or something like that. The normal requirement would very often indicate that the best person suited for that post would be somebody who had already judicial experience. That is a very difficult problem to resolve but I think it is minimised if the principle of having no promotion from court to court is  adhered to. Then the possibility of selecting an individual for these particular presiding posts is made easier.
I felt compelled to add my voice to those who have expressed fear of this principle of promotion. Otherwise, the courts will simply tend to become instruments of the Executive. Again, I am talking in principle. If that were to be the pattern in which the situation was likely to develop, it would be very important indeed for us, perhaps, to look at the whole judicial system. There might be a question of recasting that in a new context.
There is another thing we have to bear in mind in this country also and, again, it is a matter of importance, namely, that our Supreme Court has an important constitutional rôle and, in the concept of the Constitution, our Supreme Court is a constitutional counterbalance to the Executive and the Parliament. At least, that is the concept of it. If that is to be a reality, the principle of the independence of the judiciary is an extremely important one.
These are, perhaps, theoretical points but theoretical points, when they are the matters of principle raised by Deputy O'Higgins, are well worth our attention and are necessary guides sometimes in practice. I do not think I would help by trying to elaborate on particular hypothetical cases. That would do more harm than good. I hope the Parliamentary Secretary will understand the spirit in which this point is made, and very sincerely made, from both sides of the House.
Mr. Haughey: I should say at the outset I fully appreciate that this argument is advanced and this amendment is put down with a view to improving the Bill. I will go further and say that, indeed, it is an argument which can very well be advanced and has a deal to support it. I have said here when we were discussing a similar type of amendment to this which Deputy O'Higgins put down dealing with the question of promotion from the circuit court to the High Court, that we would all be reluctant to contemplate the idea of promotion from one court to another as any sort of general practice.  The arguments against such a thing are very obvious. They have been mentioned. The argument that individual judges or justices might be inclined to temper their views and their judgments in order to seek favour from somebody or other is there and is quite clear, and it is one to which we must give due regard. I will go further and say I think we could all agree that any sort of wholesale practice of promotion from court to court would be undesirable, but I want to point out that the possibility of a barrister district justice being promoted to the circuit court has been there since 1924.
Mr. McGilligan: And has never been used
Mr. Haughey: It has never been used—correct.
Mr. McGilligan: Thirty-seven years.
Mr. Haughey: It has never been used and, more important than that, we have no evidence whatever that the barrister district justices at any time have ever given any indication that they were attempting to curry favour with the Government or with anybody else. I think we can all be very proud and I am sure we all are very proud of the independence of the judiciary in this country. We consider that it is something that will always be maintained and anything any of us can do in this House to ensure it will be upheld we should be willing to do.
The best argument I can put forward against this proposal is that the power has been there for 37 years and, in practice, has never been used. I think it is extremely unlikely that it will ever be used. That is a tremendous addition to the weight of precedent which has been brought to bear on this matter.
Having said all that, bearing in mind, as we do, the undesirability of the idea of promotion, it is right that we should contemplate a situation when we might have a particularly outstanding person in the district court. I do not think we should, by law, exclude forever the possibility of a Government being able to call on such a person and to appoint him to the circuit court, if he were the only really  suitable person available and the best person who could be got for such an appointment.
There is also the aspect of an anomaly that would arise if we were to adopt the proposal which would have the result that a man with ten years' practice as a barrister would be eligible for appointment to the district court. He can practise as a barrister for 12 years and then as a district court justice for another five years. He can gain all the experience that five years sitting on a district court bench would give on top of his 12 years' experience at the Bar, and he would not be eligible for promotion to the circuit court whereas a barrister with nothing more than 10 years' experience practising at the Bar would be eligible. That is a little anomaly.
Mr. T.F. O'Higgins: I think it is right that it should be so.
Mr. Haughey: After 12 years at the Bar and five years as a district justice he would be regarded as an unsuitable appointment to the circuit court, whereas a man with only 10 years at the Bar would be eligible for appointment. I think we must rely on precedent, tradition and established practice to obviate the dangers Deputy O'Higgins and Deputy Booth fear.
Mr. T.F. O'Higgins: I do not want to be impolite to the Parliamentary Secretary. The Parliamentary Secretary has said that this point is there; it is pretty well unanswerable, but we will ignore it. There is no doubt that promotion is bad in principle. According to the Parliamentary Secretary he agrees that it is undesirable and then, having said that, I should have felt that he would have been driven inevitably to the conclusion that the power to provide for promotion should not be in our legislation.
It is true that it was in the 1924 Act but it is also true that it has never been availed of over the past 37 years. Despite the fact that there were successive different Governments, no existing appointee as district justice was, in fact, appointed to the circuit court. Therefore, the power was there over  a long period but it was not exercised and no circumstances arose in which any Government were tempted to use it. In those circumstances, I do not see why the power should be retained in this Act.
It is a power to act in contravention of a principle, which everyone recognises as being a correct principle, that there should not be promotion. The Parliamentary Secretary says there can be exceptional circumstances and an exceptional man, but we should not legislate for exceptional or improbable circumstances. In fact, one's experience has shown that those circumstances have not arisen for nearly 40 years. The Parliamentary Secretary says there would be an anomaly and that a person with some 10 years experience at the Bar might be appointed a district justice and after serving for five or six years in the district court the question might arise as to whether he should be considered for appointment to the circuit court as against a barrister with 10 years in practice.
Certainly, as between them, if one were merely to consider the question of experience and practicability one would feel that there was not very much in it, but there is the principle that a man who is appointed to the district court bench and takes that appointment should be glad to get it, and realise that no matter how long he might be there that is his job, he is the holder of a judicial office and cannot be promoted beyond that I do not see any answer to that.
I think it would be most undesirable and a sign of very bad government if at any time the Government of this country began looking around and saying: “There is a man with 10 years' practice at the Bar who has now served for 10 years on the district court bench. He is a person in whom we have confidence and we therefore propose to appoint him to the circuit court as against any other person who might be in practice there at the moment.” The very moment that is done once—and once the power is there to do it it might be done once— you can write off any idea of an  independent, steadfast, stalwart judiciary. The rot will have set in and the difficulties obviously will be increased.
Major de Valera: Let me add something to what Deputy O'Higgins has said. Here is the way it will work. The person who will be promoted will be promoted on suitability and sound decisions. I am talking in theory now. One of the things which would help a man would be sound decisions, and from the Minister's point of view sound decisions would be a good sound record of convictions especially in a certain type of case. I am not suggesting any deliberateness in this but I am pointing out the natural human psychology. We must look not only to the independence of the judiciary but to the rights of the individual about which we all talk so much.
Mr. Booth: I find some difficulty in accepting the Parliamentary Secretary's proposal that this subsection should be retained because of the possibility of an outstanding person becoming available as a district justice and thereby qualifying for promotion to the circuit court bench. The point I was trying to make on amendment No. 41 was that while there might not at the moment be a solicitor of sufficient standing in the circuit court to justify his promotion, a changed situation might well arise. The Parliamentary Secretary did not seem to be in the slightest bit impressed by that argument and now he produces it in this case.
If solicitors as such are to be precluded from being appointed as judges of the circuit court, exactly the same circumstances must apply to justices of the district court. I feel quite definitely that the longer a man sits as a district justice the better qualified he should be in that particular office. I also feel that the longer he sits as a district justice, the less qualified he will become to act as a circuit court judge because the whole trend of his thinking will be away from the complexities of the law. He will be dealing with a completely different set-up and type of case and he will not have any need,  nor probably any opportunity, for sitting on legal decisions and precedents. He could very well go to the circuit court very ill-prepared indeed and worse prepared than a barrister of 10 years' standing. I hope the Government will not be unduly impressed by tradition in this case. In actual fact the tradition in this case is purely theoretical.
If there had been a tradition that district justices were being promoted to the circuit court, I can see that the Government might be slow to break off a tradition unless it was very desirable. But in actual fact there is no tradition at all except a tradition to have a certain provision implemented in a statute. Since that statutory provision has never been invoked in 37 years, it has been proved to be entirely unnecessary. I feel it is not only unnecessary but undesirable, and I would strongly urge the Parliamentary Secretary to reconsider this matter.
Mr. M.P. Murphy: Would the Parliamentary Secretary consider the advisability of changing the system of appointment which has been in operation since the foundation of the State? We have in this section the qualifications of judges of the circuit court. As everybody knows, the main qualification you require is a political one. That has applied to all Governments.
Mr. Haughey: That is the one I did not mention.
Mr. M.P. Murphy: While I agree the Government are entitled to make appointments, and it is essential for them to retain that power in the case of some appointments, I believe there is no justification——
An Ceann Comhairle: The Deputy knows we are considering amendment No. 43?
Mr. M.P. Murphy: We are considering the section together with the amendment.
An Ceann Comhairle: We must consider the amendment by itself.
Mr. M.P. Murphy: Then I shall reserve my remarks for the section.
Mr. McGilligan: I want to join in the general condemnation of this subsection (2) (b). The unanswered and unanswerable argument against it is that in 37 years it has never been found necessary to use it. One must look back at the circumstances in which the 1924 Act was passed and where this matter of service in the lower courts was regarded as a prerequisite to enable promotion to be made to the higher courts. That was put into the 1924 Act with regard to the circuit court and the High Court, on the one hand, and the Supreme Court, on the other.
The situation was somewhat confused. New courts were being established. There was excellent material offering for all the courts. There were some phenomenal appointments made to district justice in those early days. A person who might be regarded over the years as the permanent Attorney General, and who recently retired from that office, was a district justice in his day. He came from a considerable practice, went into the district justice post and eventually went into the office of Attorney General. There were quite a number of people. I am reminded of another person who had an amazingly large practice at the Bar and who became a district justice. He got rather tired of the district justice position after a bit and took a post in the Department of Justice from which he later went back to the Bar. He was an outstanding success until his premature death.
There was great material offering at the time. It was deliberated on at the time. I understand it was said it might be wrong to have a man chosen to go into a particular appointment in the law courts and this qualifying clause was brought in to preclude him from appointment if he was not at the time of his appointment a practising barrister. Am I right in saying there is only one example in the whole court system of what was a real promotion? That exceptional case proves the rule that would be established if we obliterated this section. That was a particular person who was offered a High Court judgeship, but, in his humility, decided to refuse it. He was then given what  amounted to a postponed warrant of appointment by the then Government, who left it in his hands to decide when he thought he was by experience and practice at a point where he might attain to the higher position. He was eventually appointed to the higher position, but he was a person who had actually been given the warrant of appointment in the first instance and refused himself to accept it. If over the whole series of courts, in regard to this question of service as a judge in a lower court being regarded as a prerequisite to enable a person to qualify for the higher appointment, there is only this one example—I do not think it is a real example—I think it is surely time to withdraw this.
We could say “Leave it as it is; it is only dead wood,” but it is a standing temptation. When it is there and we are giving people appointments, it is a temptation to give them preferment. Deputy de Valera put it that people were inconsistent in their judgment and feared the administrative machine. Political temptation, however, is there the whole time.
We talk about an independent judiciary. Let us say they are independent once they become judges, but there is no independence in the approach to the judicial office. I have heard people who were eventually appointed judges being praised in this House because as Deputies of the Fianna Fáil back benches, they appeared on their lorries—not as much as they should have, but they did appear. That was apparently regarded as a qualification for judicial office. If a person takes up a judicial office, he should then remain where he is put. There should be no question of his currying further favours either by appealing to the administration or being more of a politician. He should not be allowed to look for preferment. But that possibility offers to him so long as that subsection is there. If we have not found it necessary to use that clause, put in under very different circumstances, it is about time we removed it.
Mr. Haughey: I am not sure that I should not say at this stage exactly what I hope I conveyed in my earlier  remarks. I do not really think there is anything undesirable in the principle of promotion. I think it is perfectly right to contemplate, in proper circumstances, the idea of a judge being promoted from one court to another. I have gone along with the Deputies who have argued on this point to the extent of saying that the fact that you go for promotion could give rise to dangers if it were abused. Somebody here put it that there is some element of an invitation there at some stage, maybe, unscrupulously to avail of this provision.
If I were coming to this matter for the first time and legislating about it de novo, it is possible I would not include any such provision in the Bill, despite the fact that would have the anomalous effect I have already mentioned, namely, that a barrister of ten years' standing only would be entitled to be appointed to the circuit court whereas a barrister of 12 years' standing, plus five years in the district court, would not.
Despite the fact that that anomaly would arise, I still think it is possible that if we were approaching this completely afresh and if there were no existing law there to be considered, we might not make this provision. I am not sure, but the provision is there. It is a very remote thing. This, if you like, is a privilege that district justices have at the moment. A conscientious hardworking justice can contemplate that if he devotes himself zealously and earnestly to the efficient discharge of his functions and duties, a situation may arise where he may be promoted for perfectly worthy reasons to the circuit court. I admit it is very remote but it is the sort of perquisite that district justices have and we would be taking it away from them. There is also the aspect of anomaly that would arise if we were to remove subsection (2) (b). We have the assurance of the protection of the 37 years of precedent and I think it is better to leave the provision there than take it away. I must admit the possibility that at some future date it could be abused but the possibility is so remote that it is not one we need worry about.
Mr. Lindsay: I have two objections to this. I object to it on the general ground of promotion from court to court. That is an objection in principle. My second objection is an objection in relation to practice, that selecting somebody from a lower court for a vacancy in a higher one—and this applies to many professions—automatically means one of two things, that the material is not available among the people already in practice or that if the material is there, the ordinary outlet is not being used. It is disadvantageous particularly to younger persons in the profession to have a choking at the top.
Another difficulty I see in this subsection is that while it was in the Act of 1924, the circumstances, as explained by Deputy McGilligan, are somewhat different and the atmosphere in which we live is quite different. At the moment it is easy to see who are the barristers on the district court bench. By a further look at any law calendar, it is easy to see the date of their admission as members of the Bar. When one narrows that down, it can then be seen how many of those barristers were appointed to the district court bench with the necessary period of six years or over but with less than ten at that time.
In the event of this provision being used—although I am inclined to accept the Parliamentary Secretary's expression of good intentions in this regard —it is so easy not alone for members of the profession but members of the general public to say: “Now we know why subsection (2) (b) was retained. It was in order to benefit a particular person who, while he had the six years and was a district justice for a time, did not have the qualifying period of ten years which was necessary to bring him in.” I see that difficulty. I am not speaking personally and I have nobody in mind. But the whole thing can be held up to ridicule in the event of its happening. In the event of its not happening, it lies buried and innocuous. As soon as it does happen, there will be a certain amount of criticism outside. It will not be expressed publicly but privately.
 This is an enabling subsection that would be highly contentious and one which would bring scorn and ridicule not alone upon the Executive but upon the judiciary itself that somebody has been selected for them. It may be quite wrong. The man selected might well have all the qualities the Parliamentary Secretary attributes to him, but the very fact that he was short of that qualification without this enabling clause enables people to cricitise it. I am not saying it applies to this Government alone. This would enable the Opposition to the Government in power to say: “Surely he was one of themselves. He was specially selected.” You hear it very often in relation to other things.
It may be wrong but it is very important that the finger of scorn, which is almost identical at the moment with the finger of preferment, should not be pointed at any person appointed to the circuit court bench. There is great force in what Deputy O'Higgins says that if a person is honoured by being appointed to the district court bench and if he is satisfied with that at that time, it should be his privilege to continue to stay in the position of honour which has been given to him.
Mr. Haughey: We are arguing not so much against the subsection as against the Government coming along to exercise it at any moment. Consider the position if the Government sought to avail of this subsection. The Opposition in the House would be able to point to the fact that this appointment was not made in 37 years or more and the Government would have to be in a very strong position to justify the appointment.
Mr. T.F. O'Higgins: It would be ruled out. There could not be a discussion on it.
Mr. Haughey: What I mean is that the Government would have to be very well fortified in their belief to face up to the general body of criticism that would arise in the House and outside it. Of course there is this about it. The provision does not apply to solicitor  district justices and they are in the majority and will continue to be in the majority. Therefore, I feel the provision itself is quite innocuous. I suppose it is a fairly fine decision whether to take it out or leave it there, particularly as it has been a dead letter for 37 years, but as it is so innocuous and as there is a possibility that some day it may need to be availed of in very meritorious circumstances, I think the House should leave it there.
Question: “That the words proposed to be deleted stand” put and declared carried.
Notice taken that 20 Members were not present; House counted, and 20 Members being present,
Question proposed: “That Section 17 stand part of the Bill.”
Mr. M.P. Murphy: With regard to the qualifications of judges, it is a well-known fact that the main qualification for becoming a judge of any court in this country is a political qualification. Without that, you cannot hope to succeed, except a reservation is made for a religious appointment to the High Court Bench, but all other appointments are made on a political basis. Even though that has been the established practice since the foundation of the State, I think the time is now at hand for a change in that system and for devising some more impartial way of appointing members of the judiciary.
What must a barrister do at the present time if he hopes to become a judge? First of all, he must visit some place like West Cork because I heard numerous members of the Bar who support the Government Party speak at the different church gates in that area. He must go along from church gate to church gate speaking at political meetings and exert himself in every possible way to promote the Government interest. That is absolutely essential. Deputy de Valera looks rather surprised.
Major de Valera: Slightly, since I see opposite me nothing but lawyers and on this side only an ex-lawyer.
Mr. M.P. Murphy: The rules of the House do not allow us to take these judges one by one. If we were to do so, that is what you would find. I remember a recent appointment where the person in question was speaking at a political meeting in this city. I was passing by at the time and I stopped to listen to him for a few minutes addressing a political meeting in support of a by-election candidate. The following day his announcement as a judge was made by the Government. In actual fact, he was promoted the day following the meeting.
Mr. Moher: Perhaps he was briefed by the candidate.
Mr. M.P. Murphy: I think that system is wrong. I am not blaming the Government for this. I have stated that this is the system that has been applied since the establishment of the State under all Governments and that it is impossible for a barrister to become a judge, unless he attaches himself very closely to a political Party which is likely to form the Government. I have some sympathy for those junior barristers and a few solicitors who come to places like West Cork to speak at political meetings. It is rather difficult for them. At the same time, I have to reflect on how they fared. A few were appointed to the Bench and one got the consolation of being appointed a State Solicitor. Apparently, the people who attach themselves to political Parties are not doing badly.
The fact that a barrister is attached to a political Party should not preclude his appointment in any way. Any person is entitled to attach himself to any Party he decides on but he should not get preferential treatment on that account. We have a substantial number of members of the Bar in this country who hold independent views politically. In other words, they do not go round to church gates airing their views publicly. These members of the Bar, under the present system, have no chance of being appointed to the Bench. I feel that they should have their chances and should be in the running just as well as the others who are politically attached.
 I am asking the Government and the Parliamentary Secretary to revise what I would term a deplorable system because the question will arise as to whether we have the respect we should have for our courts. We find these people going along to public meetings in the towns and villages. Some of them express themselves in terms that are not creditable in order to get their case across to their listeners. Then we find them on the Bench a short time afterwards. That is not conductive to respect for our judiciary.
I appeal, as strongly as I possibly can, to the Government to revise this system and to set up some kind of an appointments commission so that, when a vacancy exists for a Supreme Court judge, a High Court judge, a Circuit Court judge or a district justice, these barristers, who are qualified according to the terms of this section and who have the prescribed experience, will have a chance of applying. The more suitable candidate should be appointed in the same way as the more suitable applicants are appointed when other vacancies arise.
Mr. Haughey: Are they?
Mr. M.P. Murphy: The Parliamentary Secretary is better able to answer that question than I am. He has more information than I have. I would not think that the Government were using influence in regard to appointments made by the Local Appointments Commission but——
Mr. Haughey: I heard the Deputy criticise appointments made by the Local Appointments Commission.
Mr. M.P. Murphy: Surely the system is more impartial than the system of appointing the judges? My opinion of the Local Appointments Commission seems to be much higher than that of the Parliamentary Secretary. Of course the Parliamentary Secretary is more knowledgeable in that field and it may happen that the Government Party are exercising influence in that field, too——
Mr. Haughey: The Deputy should not be ridiculous.
Mr. M.P. Murphy: ——that we are not aware of.
Mr. Haughey: The Deputy should not be childish.
Mr. M.P. Murphy: If that is the case, it should not continue. I would appeal to the Government to revise the system. Before I conclude, could the Parliamentary Secretary tell me how many judges on the High Court Bench were people who endeavoured to get into this House and who were political candidates? Judging by the vote they got at the elections, they had no hope of coming in here, because many of them failed to get a four-figure vote. It is reasonable to assume that it was not at this House they were aiming when they offered themselves as candidates on behalf of the then Government Party or other Government Parties but that they were endeavouring to get into a house elsewhere. That is the system I want to see ended. It has existed for 40 years and it is time to do away with it.
Mr. Haughey: This is not the first time that this argument has been put forward in the House. I want to emphasise at the outset that the appointment of judges is a matter for the President constitutionally. The President, and not the Government, appoints judges. Constitutionally, the President appoints judges, not the Government.
Mr. M.P. Murphy: On the recommendation of the Government.
Mr. Haughey: The Constitution places fairly and squarely on the shoulders of the Government the duty of advising the President as to the appointments he should make. The Government cannot get out of that responsibility. It is a constitutional responsibility which is placed on the Government and they cannot escape or shuffle it off or delegate it or anything else. It is a function that very properly and rightly devolves upon them and they must face up to it and exercise it.
The Taoiseach, in the debate on the Courts of Justice Bill, 1959, said:
“The appointment of members of the Judiciary is an important function of Government and to my last breath I shall oppose any proposition to transfer that function to some bureaucratic institution or committee. The independence of the individual judge in the exercise of his judicial functions is very important, but that the Government elected by the people is superior in status and function to any other branch of the administration is a principle we must assert—a principle always asserted by those who understand the real functioning of democratic institutions.”
That, to my mind, is the real issue we have here. It would be constitutionally impossible to appoint any institution other than the Government to take upon itself this function of advising the President with regard to these appointments.
If we are to accept the argument that there is something wrong with judicial appointments at the moment and we must also accept that the Government must carry out this function, then the only other thing that follows is that we would have to preclude all barristers and all members of the legal profession from having any part whatever in politics. That would be ridiculous. We all know that, from earliest times, down through the centuries, the professions of politics and the law have been very closely associated and that from time to time in different societies they were practically inseparable.
It would be absurd to suggest that a barrister or solicitor should be precluded from any political activity whatever. Once we accept that proposition, then it must follow that the Government, in making appointments to the Bench, must necessarily from time to time appoint people who have political leanings one way or another. At the moment, on the Bench in the Supreme Court and the High Court, there are people who never had political affiliations with one Party or another. There are appointments made traditionally to the High Court and the Supreme Court of people who  have not and never would have any political leanings or political associations.
It would be invidious for me to mention names here but there is one well-known person who was a most prominent supporter and member of the Opposition who was appointed to the Bench by this Government.
Mr. M.P. Murphy: But there was a political motive behind that, too. What about the southern part of the country?
Mr. Moher: The Deputy looks on everything with a jaundiced eye.
Mr. Haughey: There was no political motive. I am not sure that this matter should be debated on this section but, once the argument has been put forward by Deputy Murphy, I feel I should reply to it. I am quite confident that we have, under the present system of appointment, an excellent and independent judiciary of whom we can all be proud. Therefore, the end product is there. If the end product is there, it is fairly reasonable to assume that the system must be all right. The system can be justified completely on a logical basis. The Constitution lays down that the Government must exercise this function. Once you accept that, then the rest all follows.
It is nonsense to suggest that every appointment to the Bench in this country is made on a political basis. I am quite certain that 95 per cent. of appointments are the best appointments that can be made.
Mr. McGilligan: I do not know whether Deputy Murphy's arguments are applicable to this section at all or applicable to the whole system of courts of justice in the country but he has been allowed to speak on this matter. I have never heard such superficial arguments of the type produced by the Parliamentary Secretary in answer to what is well known. It is nonsense to say in this House that the best people are appointed to the Bench. That simply is not the case.
The Parliamentary Secretary says that there are a number of people on  the Bench who have no political affiliations. I have been turning over in my mind as he spoke what I know to be the position: I am speaking of the higher courts. I do not recognise the people the Parliamentary Secretary mentioned. I know certain people on the Bench who were affiliated to both Parties at different times. The position some of them took up at a particular moment coincided with the chance of preferment but nobody who knows the country can say that the best people in the profession are selected for appointment to the Bench. That is not the case.
It may be the position that after people of less merit than other people get judicial appointments, they make good judges. I am not for a moment questioning the partiality or impartiality of judges, but to say that their appointment is on the basis of merit is not realistic.
Mr. Haughey: Suitability.
Mr. McGilligan: That brings in all that Deputy Murphy is talking about. I remember being down in Deputy Murphy's area, around West Cork, at one election. There was an arrangement between the two Parties to have their meetings at different times. One meeting was being rather unduly prolonged and a question was asked about it whereupon an announcement was made from the platform to the effect that the meeting was late because a speaker, “a man of European reputation on the topic of `neutrality' ”—as it was termed—“was about to make his appearance.” Then, up stood a young member of my profession who has now been invested in terms of respect because he is on the Bench. I have no doubt it was political.
Of course politics are definitely at the background of these appointments. It is nonsensical to say that is not so. One can say that and make the definite statement that meritorious people have been passed over and over again in favour of people who are very much inferior to them in legal capacity, experience, training, world outlook, and so on. I do not want to be interpreted as saying that when the  judges go on the Bench, they do not preserve impartiality.
With regard to the details of Section 17, subsection (1) (b) mentions “qualified for appointment as an ordinary judge.” I have flogged that matter of “ordinary” judge. I ask again that these people will not be styled in their warrants of appointment “ordinary” judge but “judge” because that is what the Constitution recognises. If we cannot get agreement about that phrase, let us at least know what we are trying to put into a formula. The qualification is, as far as the judges of the circuit court are concerned, in subsection (2) (a) “A person who is for the time being a practising barrister of not less than 10 years' standing.” That is the formula in all matters of appointment. The number of years varies but the phrase is running right through the Bill, “for the time being a practising barrister or solicitor of not less than blank years standing.” When this was before the House on the last occasion, the Parliamentary Secretary said that he took that to mean that a person had to be in practice for ten years or 12 years as the case might be. If that is the intention——
Mr. Haughey: I made it clear that I was not saying that.
Mr. McGilligan: Very good. Then there is agreement that this does not mean what it is ordinarily supposed to mean. In the other Acts, it was at the time of his appointment and Deputy Sherwin asked was there any significance in the change. The qualification therefore is that on the date on which the person is appointed he must be in practice either as a barrister or a solicitor and must have a standing of so many years. I put it to the House and it is backed by case law that that means there must be this period elapsing from the date of his qualification or profession until the date of his appointment.
A person need not be in actual practice, or in practice at all except that he shows himself, so to speak, in the area of practice—in the Law Library, for instance, if he is a barrister—a few days or hours before he is appointed.  I put it to the Parliamentary Secretary that it must be within his knowledge that a person was appointed to a court having been for the greater part of the qualifying period a full time journalist and had not practised the four, five or six years——
Mr. Haughey: What court was that?
Mr. McGilligan: The district court.
Mr. Haughey: This only concerns the circuit court.
Mr. McGilligan: It is quite clear that the phrase is not intended to rule out a person because he was not in active practice. But to say in practice at the time of his appointment is just nonsense, if a person just shows himself in what I call the area of practice.
I am not in complete agreement with Deputy Murphy in regard to the matter of appointment. If a body such as the Local Appointments Commission recommended somebody before everybody else and the Government did not take that forward as advice to the President, there could be trouble and there could be trouble here also. The President must act on the advice of the Government but the Government could also act on the advice of a body such as the Local Appointments Commission or some other body. This matter has been agitated throughout the country for many years. There are people who have strong views on it. I think we could get a better system of appointment and I would be very glad to see some other form put into operation.
Mr. M.P. Murphy: I think Deputy McGilligan, who incidentally has a much closer association with the position than any other person in this House, has answered the Parliamentary Secretary's denials in regard to the political appointments effectively and there is little need to deal further with that point. In regard to his assertion that the Government must do this job, that it is mandatory on them and in accordance with the Constitution, I think Deputy McGilligan has answered that also.
Mr. Haughey: Do not be silly.
Mr. M.P. Murphy: There was nothing to preclude the Government from establishing some kind of independent commission akin to the Local Appointments Commission to recommend a person they consider the most suitable candidate.
Mr. Haughey: Can the Deputy not get anything right? I said the President makes the appointment.
Mr. M.P. Murphy: Everybody knows the Government makes the appointments. The President is only nominally the head of the State, and it is the Government who make the recommendation to the President. We all know that. The Parliamentary Secretary should not try to be a little untruthful, because it is foreign to his nature. He should not try to get across points which have no foundation in fact.
The Parliamentary Secretary stated also that if my contention was upheld it would mean barristers could not affiliate themselves to any political Party. I made no such statement. Association with a political Party should not be in any way a hindrance to appointment to the Bench but it should not mean preferential treatment, which is the case at the moment. I am casting no reflections on the members of the Bench, but the Parliamentary Secretary seems to think that they were the best that could be got down through the years. I think Deputy McGilligan has answered that point effectively. He has much more experience in that field than the majority in this House. Everybody knows that the most suitable applicants are not appointed; how could they be if they are outdone by people with the desired political qualifications?
I am sure the Parliamentary Secretary should be sufficiently convinced of the falsity of his outlook on this matter to recommend to the Minister and the Government that it is time to review this system. There would be much more respect for our judges and for their decisions if they were appointed on some basis other than their political qualification which is  the main qualification one must hold today if one wants to be appointed to the Bench. Some of the appointments are made on a religious basis in order to straighten out matters a little.
An Leas-Cheann Comhairle: Is Section 17 agreed to?
Mr. McGilligan: I should be glad if you would put the question.
Question put and declared carried.
Question proposed: “That Section 18 stand part of the Bill.”
Mr. Cosgrave: Could the Parliamentary Secretary say if there is a difference between the retirement age for the Circuit Court and the High Court? Is there any reason why the two should not be the same? Seventy seems reasonable enough.
Mr. Haughey: They are just different Courts. The High Court is, of course, a completely different type of court from the circuit court. I am not saying why they should be different any more than Deputy Cosgrave has adduced arguments as to why they should be the same.
Mr. Cosgrave: The upper age limit in the High Court was introduced by way of amendment in order to meet a particular judge on a particular occasion. Seventy would be a more appropriate age all round. It would be worth considering having seventy as the upper age limit.
Mr. Haughey: A very strong case would have to be made as to why something that is already there should be reduced.
Mr. Cosgrave: When 72 was introduced, it was introduced to cover a particular judge. Then it became the general age for retirement. It might be worth considering reverting to 70 as the upper age limit.
Mr. Haughey: That would have to be very strongly argued before I could  accept the proposition, the more so as it is a reduction of something that is already there. In the case of the High Court, the older and more experienced a man is the better judge he is possibly. I am not at all convinced that there is any case for reducing it to 70. I can see very practical difficulties if any attempt is made on the lines suggested by the Deputy. Deputy Cosgrave has not made any real case for reducing the age of retirement.
Mr. McGilligan: What is the retiring age in the Civil Service? Is it not 65?
Mr. Haughey: Yes.
Mr. McGilligan: A person must go at 65, but he may go at 60.
Mr. Haughey: Yes.
Mr. Cosgrave: Seventy-two seems an odd age. One could understand 70. The two extra years are inexplicable.
Mr. Haughey: The retiring age for Supreme Court and High Court Judges is 72. There is a circuit court judge who was appointed before the 12th July, 1947, and he can go on to 72. All the others will go at 70. District justices appointed before 29th July, 1946—there is only one left now—go to 70. All others go at 65, with provision for an extension to 70.
Mr. Cosgrave: In effect, up to the passing of this Bill the age of retirement for circuit court judges was 72. We are reducing it to 70.
Mr. Haughey: No. It was reduced in 1947. There is a definite pattern; the more senior the court, the later the retiring age. I think that is something that can be justified.
Question put and agreed to.
Question proposed: “That Section 19 stand part of the Bill.”
Mr. McGilligan: I want to raise a point I raised previously where a similar phrase to that set out in subsection (2) is used in regard to another  court. This point puzzled me on an earlier occasion and the explanation given on the previous occasion was that it would cover a very special and exceptional case. The subsection reads:
Where a judge of the Circuit Court is removed from office on account of incapacity, he shall be deemed for the purpose of pension to have vacated his office owing to permanent infirmity.
I was wondering why should we treat a judge who becomes handicapped in this lenient way? A judge who finds his mental or physical strength weakening can always retire by sending in his resignation. If he has a certain number of years' service he will qualify for pension. It was explained on the last occasion that this provision was put in to meet the exceptional case of a judge who becomes so infirm that he cannot send in a letter of resignation. That is a very special case. It has never arisen so far and I feel that, if that is the only case that has to be met, then the phrasing should be modified to aim particularly at that. I still do not think this provision is necessary. If a judge becomes so infirm that he cannot send in a letter of resignation and this House has by Resolution to remove him on grounds of incapacity, the House could, at that point, if so minded, pass legislation ensuring pension rights to such a person. This phrase occurred also in the Act of 1946 in connection with the district court. Was the explanation now given given at that point also—that this is to meet the case of a person so infirm that he cannot resign? I do not remember it.
Mr. Haughey: The answer to the last question is “Yes, that explanation was, in fact, given for that particular provision at that time”. District justices have had this provision applied to them since 1946. I think it is a very sensible and a very fair provision. Here, we are dealing with the case of a circuit court judge who, through no fault of his own, becomes completely incapacitated and incapable of resigning because of paralysis, mental disorder, or something like  that. Why should he be victimised? Is it not only just that we should, as part of the privilege of his office, defend that privilege by statute to ensure, in the event of calamity, that he will be entitled to his pension in the same way as if he vacated his office of his own volition because of permanent incapacity?
Question put and agreed to.
Sections 20 and 21 agreed to.
Mr. Haughey: I move amendment No. 44:
Before subsection (2), to insert the following new subsection:—
“(2) The Circuit Court shall, concurrently with the High Court, have and exercise the jurisdiction in lunacy matters which was conferred on the Lord Chancellor of Ireland by section 68 of the Lunacy Regulation (Ireland) Act, 1871, that is to say, in cases where the property of the person alleged to be of unsound mind and incapable of managing his affairs does not exceed two thousand pounds in value or the income therefrom does not exceed one hundred pounds per annum.”
This amendment gives the circuit court the statutory jurisdiction which the existing High Court possesses under Section 68 of the Lunacy Regulation (Ireland) Act, 1871. As the Bill stands, it proposes to give the circuit court jurisdiction in lunacy matters where the property of the persons concerned, in so far as it consists of personalty, does not exceed £2,000 in amount or value or, in so far as it consists of land, does not exceed £60 in rateable valuation. This is the effect of Section 22 (1) and reference No. 28 of the Third Schedule.
It has been represented to me that the provisions in the Third Schedule continue certain doubts which exist under the present law as to the jurisdiction of the circuit court in lunacy cases—for example, the question of the right to have the issue as to sanity  decided by a jury. Section 68 of the 1871 Act empowered the Lord Chancellor, where the property of the insane person did not exceed £2,000 in value or £100 per annum, to apply it for his benefit in a summary manner, without directing any inquiry under a Commission of Lunacy, i.e. an inquiry by a Commissioner sitting with a jury. It will be more convenient and consistent to follow the framework of Section 68 in giving the increased jurisdiction which the Bill proposes.
As a consequence reference number 28 of the Third Schedule is being deleted and the Lunacy (Ireland) Act, 1880, which conferred its existing jurisdiction on the circuit court is being repealed. That is being done by amendments Nos. 89 and 94.
Mr. McGilligan: I am not familiar with this particular line of practice. Why is this jurisdiction given to the circuit court concurrently with the High Court?
Mr. Haughey: Because originally jurisdiction was given to the Lord Chancellor and his successor is the High Court.
Mr. T.F. O'Higgins: Personalty not exceeding £2,000 and, in the case of land, a Poor Law Valuation of £60—I was just wondering why that is not stated in the amendment.
Mr. Haughey: Why what is not stated?
Mr. T.F. O'Higgins: This amendment is for the purpose of inserting a new subsection. Under the subsection jurisdiction is given in cases where the property of the person alleged to be of unsound mind does not exceed £2,000 in value.
Mr. Haughey: Or the income therefrom does not exceed £100.
Mr. McGilligan: You have got the income part.
Mr. T.F. O'Higgins: What about the land?
Mr. Haughey: That is included in the £2,000 in value.
Mr. T.F. O'Higgins: No.
Mr. McGilligan: No.
Mr. T.F. O'Higgins: The subsection as it stands at the moment refers to personalty, money and so on and it is understandable in that context but where is the jurisdiction conferred now in relation to land, in the amendment?
Mr. Haughey: The reference No. 28 to the Third Schedule is going out and also the Act of 1888 is being repealed in the Repeals Schedule. We are putting in instead:
“in cases where the property of the person alleged to be of unsound mind and incapable of managing his affairs does not exceed two thousand pounds in value or the income therefrom does not exceed one hundred pounds per annum...
So, it does not matter whether it is land or personalty or what it may be.
Mr. McGilligan: We raise this only because you mentioned land—£60 valuation. You seemed to make three divisions—personalty £2,000, land £60 and income £100.
Mr. S. Flanagan: Was not the old method much easier to apply, that is, where valuation of a certain amount was put on land because you could have a dispute about the value of land but not about money?
Mr. McGilligan: The point was made about land of a valuation of £60. That seems to be the upper limit. Now we are saying not anything exceeding £2,000.
Mr. S. Flanagan: Was it “value” or “valuation” of £60?
Mr. T.F. O'Higgins: The Parliamentary Secretary mentioned valuation.
Mr. Haughey: Section 68 of the 1871 Act empowered the Lord Chancellor where the property of an insane person did not exceed £2,000 in value or £100 per annum to apply it for his benefit in a summary manner, without inquisition. That is the jurisdiction that we are now writing into the Bill, as distinct from what is in it at the  moment, for the circuit court, where the property of the person concerned in so far as it consists of personalty does not exceed £2,000. “In so far as it consists of land not exceeding £60 in valuation”—is what is included in the Bill and that is going out. Reference 28 of the Third Schedule is going out in the Repeals Section. We are repealing the appropriate section of the 1880 Act and putting in instead, not in the Schedule but in the Bill, the 1871 Act, Section 68 provision.
Amendment agreed to.
Mr. T.F. O'Higgins: I move amendment No. 45:
To delete subsection (2) (c).
An Leas-Cheann Comhairle: Perhaps amendments Nos. 45 and 46 could be discussed together.
Mr. T.F. O'Higgins: Under the subsection as it is in the Bill at the moment power is given to the Minister in effect to shuffle the circuit judges any way he pleases. He can, as I read subsections (c) and (d), alter existing circuits at will; he can change the disposition of circuit judges at will and, generally, he can completely reorganise and change the manner in which the circuit court operates in its eight circuits. I do not think that is desirable.
If the circuit court is to function properly it should be a court of some certainty. Circuits should be defined and clearly understood and, in my view, should be defined by statute. A circuit judge, when he is appointed to a circuit, should be appointed in the knowledge that he is a permanent judge of the circuit court in that particular circuit. The manner in which circuits from time to time are changed, the manner in which circuit judges are from time to time translated from one circuit to another is undesirable and leads to uncertainty and in my view has not worked out well.
The Parliamentary Secretary may say: “Well, from time to time it may be found necessary by reason of change in the amount of business being done in a particular circuit area,  due to changes in population, to change the judges.”
Mr. Haughey: I wonder is Deputy O'Higgins right here? May I direct the Deputy's attention to Section 20? Section 20 is the section which assigns the circuits. It says:
(1) The circuits created under section 16 (repealed by this Act) of the Act of 1953 shall be the circuits for the purposes of the Circuit Court.
(2) (a) Where a person is appointed a judge of the Circuit Court, the Government shall permanently assign him to a particular circuit.
It is not contemplated at all that that will be changed by Government Orders. Subsections (2) (c) and (d) of Section 22 clearly refer to the jurisdictions given to circuit judges.
Mr. T.F. O'Higgins: I may be misreading it. I read paragraph (c) as meaning in effect that the Minister could by order provide what judge of the circuit court would exercise the jurisdiction of the circuit court in a particular area.
Mr. Haughey: No.
Mr. T.F. O'Higgins: Would the Parliamentary Secretary tell me what it is intended to achieve by that subsection?
Mr. Haughey: Oddly enough, I think subsection (2) (c) will have to be reconsidered but for a completely different reason. Subsection (2) (a) of Section 22 reads:
The Circuit Court shall have and exercise the several jurisdictions which—
(i) were, under or by virtue of any enactment set out in column (2) of the Fourth Schedule to this Act, formerly vested in or capable of being exercised by chairmen of quarter sessions, recorders, county court judges, or quarter sessions, and
(ii) were, immediately before the operative date, vested in or  capable of being exercised by the existing Circuit Court.
In other words, it is an omnibus provision conferring on the circuit court set up under the Bill the various powers, functions, jurisdictions, and so on which were exercised by previous circuit courts.
Subsection (2) (c) merely goes on to stipulate that the Minister may by order vest in the new circuit court some power or some function or some jurisdiction which, through inadvertence, had not been specified in the Fourth Schedule but in its attempt to do that it does not do it terribly well and it may have to be looked at again.
Mr. T.F. O'Higgins: Very well. If it is going to be looked at again, we can discuss it again.
Mr. McGilligan: Does the President of the Circuit Court come in on this at all? Does the Minister do this on his own or has he to consult the President of the Circuit Court?
Mr. Haughey: The statutory provision is that the Minister does it but, no doubt, when he would come to do anything of this nature he would consult.
Mr. McGilligan: Where are the functions of the President set out?
Mr. Haughey: The President of the Circuit Court is dealt with in Section 17. What is Deputy McGilligan's point?
Mr. McGilligan: I say the Minister is referred to here as a person who may by order do certain things. Has he to get in touch with the President of the Circuit Court and consult him on these matters?
Mr. Haughey: No.
Mr. McGilligan: So, he does it on his own.
Amendment, by leave, withdrawn.
Amendment No. 46 not moved.
Section 22, as amended, agreed to.
Mr. Haughey: I move amendment No. 47:
 In subsection (2), paragraph (b), page 15, lines 18 and 19, to delete “to a distance of three miles from the shore thereof,” and substitute “and within the outer limit of the territorial seas, within the meaning of the Maritime Jurisdiction Act, 1959,”.
The object of this amendment is to make the territorial limits of the jurisdiction of the Cork Local Admiralty Court coterminous with the outer limits of the territorial jurisdiction as defined by the Maritime Jurisdiction Act, 1959, which provided for a revised method of determining these limits by reference to base-lines.
Mr. McGilligan: It provides for the base line system?
Mr. Haughey: Not the old three mile limit.
Amendment agreed to.
Section 23, as amended, agreed to.
Section 24 agreed to.
Mr. T.F. O'Higgins: I move amendment No. 48:
In subsection (1), line 28, to insert “if convicted” before “sentenced”.
I do not know whether this amendment is necessary, but subsection (1) reads strangely to me. It provides:
... every person lawfully brought before the Circuit Court in exercise of such jurisdiction may be indicted before and tried and sentenced by the Circuit Court accordingly.
Of course, the only person who can be sentenced is a person who has been convicted of an offence. The purpose of the amendment is to provide that:
... every person lawfully brought before the Circuit Court in exercise of such jurisdiction may be indicted before and tried and if convicted sentenced by the Circuit Court accordingly.
Mr. Haughey: I agree the amendment is necessary and I am accepting it.
 Amendment agreed to.
Section 25, as amended, agreed to.
An Leas-Cheann Comhairle: Amendment No. 49 is related to amendment No. 59.
Mr. Haughey: I move amendment No. 49:
Before section 26 to insert a new section as follows:—
(1) A judge of the Circuit Court may, at his discretion, transfer the trial of a criminal issue which is for trial before him to the Central Criminal Court.
(2) A judge of the Circuit Court may, if he thinks fit, transfer the trial of a criminal issue from the place in his circuit where it is required by law to be held to any other place in that circuit, and, in that event, the trial shall be held at the place to which it is transferred with a jury drawn from the jury district or other area prescribed for trials by the Circuit Court sitting in the latter place.
(3) An order of a judge of the Circuit Court under subsection (1) or subsection (2) of this section—
(a) may be made only on the application of the Attorney General or an accused person,
(b) may provide for matters ancillary or incidental to the transfer, and
(c) shall be final and unappealable.
This amendment and amendment No. 59 deal with the sending forward for trial of accused persons from the district court to the Central Criminal Court in certain cases.
Subsection (1) of the section which this amendment proposes to substitute for Section 26 of the Bill, in conjunction with the new section proposed by amendment No. 59, represents a different approach to the problem with which subsections (1), (2) and (4) of  the existing Section 26 propose to deal. That problem is the abuse to which the present automatic right of an accused person to have his trial transferred to the Central Criminal Court has given rise. As mentioned by the Minister in his introductory speech, cases have been transferred to the Central Criminal Court for no better reason than to secure an adjournment which had been properly refused, or to suit counsel or because the accused wanted to postpone the evil day. The abuse is particularly noticeable in Dublin because jurors for the Dublin Circuit Criminal Court and the Central Criminal Court are drawn from the same jury book so that an accused in Dublin has not the excuse of a country accused that by applying for a transfer he can avoid having to appear before the local jury.
Subsections (1) to (4) of the existing Section 26 had the limited object of avoiding the unnecessary expense and inconvenience which is caused to witnesses and jurors by having to be present at the circuit criminal court for a case which is transferred to the Central Criminal Court. These provisions required the Attorney General or the accused to give seven days notice of intention to make an application for a transfer.
I believe that the revised proposals contained in this amendment and in amendment No. 59 are a better approach to the problem. The House will see that an accused person who is returned for trial on a serious offence —that is an offence carrying a maximum penalty of more than five years penal servitude—will have an absolute right to be returned for trial to the Central Criminal Court instead of to the Circuit Criminal Court, if he so applies.
Where the accused person is returned for trial to the circuit court, either because the offence in question is not a serious offence within the definition I have just given or because he did not apply to be sent forward for trial to the Central Criminal Court when he was being returned for trial by the district court, then, in such case, the court is being given discretion to grant  an application by the accused or by the Attorney General to transfer the case to the Central Criminal Court at that stage. The amendment will be as effective as the present provisions in preventing inconvenience and expense to witnesses and jurors but it will also help to confine the time spent by the High Court judges on trials which the Oireachtas intended should be handled by the circuit court in ordinary circumstances. I think it is fair to say that the amendments achieve this object without any undue curtailment of the accused's rights.
Mr. McGilligan: If we accept this amendment we delete Section 26 and the new section leaves everything under the control of the judge. Am I right in that?
Mr. Haughey: Yes.
Mr. McGilligan: Everything under the control of the judge?
Mr. Haughey: At that stage. The Deputy must read it with amendment No. 59.
Mr. McGilligan: In the new section the judge is told in subsection (1) that he may transfer at his discretion, and in the second subsection that he may transfer “if he thinks fit”. Under subsection (3) an order may be made only on the application of the Attorney General or the accused person, and may provide for certain ancillary matters. The section we are amending at subsection (1) (b) provides that notice must be served on the Attorney General within seven days or the circuit court judge must grant the application. Has that point been preserved in the amendment?
Mr. Haughey: No.
Mr. McGilligan: Then there is a big change, and I should like to have it explained.
Mr. Haughey: What is being done is that, at the stage where the district justice has decided to accept informations and returned the accused for trial, the accused or the Attorney General has an absolute right to demand that the case be transferred  to the Central Criminal Court. If the accused passes up that right then it goes to the Circuit Criminal Court and he no longer has the absolute right. He may apply to the Circuit Court and it is at the discretion of the circuit court judge whether he gets the transfer or not.
Mr. T.F. O'Higgins: I can understand the basis on which this change is proposed. Taken with amendment No. 59 it means that the accused person returned for trial has the right to say: “Do not return me to the Circuit Criminal Court. I want to be returned to the Central Criminal Court.”
Progress reported; Committee to sit again.
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