Wednesday, 9 August 1961
Seanad Eireann Debate
An Leas-Chathaoirleach: It has been suggested that we take this Bill globally in Committee but there is a slight difficulty because the Standing Orders provide that the Bill be taken section by section.
Professor Hayes: I am not very strong in my views about subsection (4) of this section but I know people are dissatisfied with certain things in relation to the district courts. We have adopted a system which has great merits and for which we have to pay, just as we have to pay for everything that works. The other Bill we have just passed makes clear beyond doubt that district justices are judges but because there are more of them— because of the immense amount of litigation which comes before them— special provisions have been made  which give the Chief Justice power to interview a district justice privately and inform him of certain things. I am not sure how that will work. I may say right away that I have complete confidence in the present Chief Justice but we are legislating for the future and I am not quite sure about giving this power to anyone.
The other power still remains. The Chief Justice may appoint a judge to go into the conduct of a district justice but that power, very properly, has very rarely been exercised, and it should be rarely exercised. I take it that power still remains if a district justice, having been admonished in accordance with subsection (4), refuses to change his ways. Is that correct? Definitely putting it in legislation, and saying that the Chief Justice has power to do this kind of thing, savours to me of trying to have the best of both worlds. The independence of the district justices is constitutional and this is a departure from that principle to some extent. I know the Parliamentary Secretary's arguments are sound in many ways but it might be better to leave this provision out. I know we cannot do it now but it might have been better to leave it out.
Mr. Cole: I have seen other sections with similar pious hopes. I do not see any reason for putting this provision in the Bill. It does not mean anything. It does not give any power. I do not think it compels a district justice to go before the Chief Justice. I do not think there is any obligation on him. If the Chief Justice says: “I would like to see you on such and such a date at 3 o'clock,” I doubt if there is any power to compel a district justice to go before him. It seems to me to be a pious wish. I think this provision is absolutely useless. It does not improve our law. I do not think it will improve the running of the courts or the quality of the district justices, because the Chief Justice could interview a justice in a fatherly way in any case as he is the Chief Justice. To my mind, subsection (4) of Section 10 is just a pious wish.
Mr. Haughey: The subsection has this value. If it were suggested to the  Chief Justice that he should interview a district justice, he might very well say that he has no power, or no statutory function. Once this Bill becomes law, that doubt will be removed and it will be quite clear that the Chief Justice has power and authority to send for a district justice. It seems to me that Senator Hayes to some extent argued against himself with regard to this provision. He pointed out that we want to preserve the independence of the judiciary. We all agree with that. He went on to say that the cumbersome, heavy-handed, or as Senator Lenihan said, Draconian procedure of the 1946 Act should rarely be invoked.
Mr. Haughey: If we are to preserve the traditional independence of the judiciary, only in a particularly scandalous or outstanding case should we invoke the 1946 Act procedure. Deputy McGilligan in the Dáil said that on one occasion the Minister sent for a district justice and interviewed him informally and the situation was righted. We felt that it was better that a judicial person, such as the Chief Justice, rather than the Minister, should have the power and authority to interview a district justice.
Mr. O'Quigley: If it is right and proper that the Chief Justice should have this power in relation to district justices, how is it that the Chief Justice is not invested with this power in relation to judges of the circuit court?
Mr. O'Quigley: What was said in Cork recently is on the record and I think it is improper for Senator Lenihan to make reference to it in the circumstances. The point raised by Senator Cole is entirely valid. If the Chief Justice sends for a district justice and the district justice ignores the letter, what happens then? Nothing. The Chief Justice can do nothing about it and there is nobody else who can do anything about it.
Mr. O'Quigley: The 1946 Act. Then I understand from the Parliamentary Secretary that the type of situation where the Chief Justice would invoke these powers would not at all be the kind of situation which would warrant the invocation of the powers contained in the 1946 Act. Therefore, the powers contained in the 1946 Act in such a case would not be invoked. The whole provision here is quite redundant, quite useless and represents a kind of carping attitude towards district justices, a certain attitude of mind which does not like “allowing these fellows to become independent of the Executive.” That is what that section represents.
I notice the power of appointing notaries public is continued to be  exercisable by the Chief Justice. That is contained in subsection (1) (b). Under Section 61, the existing commissioners for oaths are continued to be regarded as having been appointed under this Bill. I wonder why notaries public are omitted from Section 61.
Mr. O'Quigley: Yes, and existing commissioners for oaths, but not notaries public, are to be regarded under Section 61 as having been appointed solicitors and commissioners to administer oaths under the new courts. In other words, the existing commissioners for oaths are continued under the new dispensation, but I do not see anything in relation to notaries public. I am sure there is an explanation for it.
Mr. O'Quigley: At the same time, a Leas-Chathaoirligh, is it not correct to say that for the purpose of authentication for certain jurisdiction of the signatures of notaries public, there is a court official who must authenticate that a particular person who signed himself as a notary public is, in fact, a notary public having been appointed by existing courts? He cannot do that unless there is some statutory sanction for notaries public, once the new courts come into operation.
Mr. Haughey: I am advised that this procedure was followed in the 1924 Act and that the position is as I have said, that Section 61 carries forward the solicitors and commissioners specifically because they are officers of court but that it is not necessary in the case of notaries public.
Mr. O'Quigley: If this is intended to be any kind of permanent Bill, I do not understand why there is a reference to a particular reform prison by name because the name may change and the location may change. What is St. Patrick's Institution? I presume it is some kind of Borstal or mental home or something like that. It should be described as a mental home for the detention of prisoners but not by name because the name may change or the location of the place may change.
Mr. Haughey: The reason it is mentioned by name is that detention in St. Patrick's Institution is a form of sentence. As Senator O'Quigley rightly says, St. Patrick's Institution is the successor to the Borstal system but it is not a form of imprisonment which would be included in the foregoing words and, therefore, it is necessary to specify it as such.
Mr. O'Quigley: For all I know or the Parliamentary Secretary knows, there could be two institutions in this country known as St. Patrick's Institution. Why do we define St. Patrick's Institution as being a particular institution located in a particular place?
Mr. Haughey: The Criminal Justice Act, 1960, makes this change and it is clear from the general context of this Bill to which particular institution we refer. If the name of it were ever to be changed, naturally, the amending legislation would give effect to that.
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