Controversy over judicial powers and pay has echoes of 90-year-old conflict
Historical view: Tensions between executive and judiciary are as old as the State
Anthony J. Jordan
The current tension between the judiciary and the Government has strong echoes of the frustration W.T. Cosgrave faced in 1923, when he had to pilot a new Courts of Justice Bill though the Dáil and Senate. It provides politicians with a warning that it may be foolhardy or even futile to challenge the power and vested interests of the judiciary.
The Minister responsible in 1923, Kevin O'Higgins, a lawyer himself, felt it right to stand aside from the ensuing battle with the judiciary. Cosgrave wanted provision for expeditious and economical disposal of legal business. He felt as the elected representatives of the people had drawn up and passed the Constitution, they should have a role in the proper functioning of the courts.
A Judiciary Committee was set up to guide the Government on a new Bill, with Lord Glenavy in the chair. Glenavy had made the transfer from being Lord Chief Justice 1916-1918, Lord Chancellor of Ireland 1918-1921, to Chairman of the first Irish Free State Senate 1922-1928, without difficulty.
Cosgrave addressed the new Committee: “The body of law and the system of judicature so imposed upon the Nation was English in their seed, English in their growth; English in vitality. The manner of their administration prevented them from striking root in the fertile soil of this Nation. The liberty to establish our own system of justice is established and the headline is set in the Constitution drawn up and passed by the elected representatives of our people.”
Cosgrave initially thought that the Bill would pass into law within a matter of days. This did not occur and it lapsed due to the forthcoming general election. When later Cosgrave came to re-introduce the Bill, he felt that it adhered to the recommendations of the Judiciary Committee. He was keen that the new law would make it somewhat cheaper for the ordinary citizen to go to court, and acknowledged “If a particular commodity that was very expensive, is going to be made cheaper, somebody must suffer, and, consequently, there will be dissatisfaction among the sufferers".
The Bill provided that each court would have a rule-making authority to settle the detailed scheme of administration of the courts. The rules would come before the Oireachtas for examination to see that they were administratively satisfactory and really enable the new courts to fulfil the high hopes entertained for a more efficient, expeditious, and less costly judicial system.
Cosgrave did not meet major opposition in the Dáil but in the Senate Lord Glenavy, who owed his Senate appointment to Cosgrave, vacated the chair to speak. In the presence of Cosgrave, he first praised some aspects of the Bill. But then he told Cosgrave that the judiciary could not be subservient to the legislature.
He claimed the government wanted the minister to formulate rules of the court and then see if the judges would concur in them. This was "a badge of humiliation which the Government would have the judges and the Bar wear", he said.Describing this section of the Bill as distinctly unconstitutional, he said it was a grave mistake for the government to run the risk of being implicated in disputes with the judges over these matters.
Cosgrave was taken aback by the vehemence of the attack. He replied: “The Minister for Home Affairs will not make rules without the concurrence of the majority of the Committee.. I do not know that there is any more democratic method that can be suggested.
“I do think, with all due respect to the Bench and the Bar, that some regard must be had to the necessary economies, which must be made in this State. We must take into consideration the balancing of our Budget. I do not know that any profession has got such security behind it for an ultimate satisfactory mode of income as this particular profession.”
Cosgrave was very frustrated as he saw the executive's plan thwarted. At one point he threatened to withdraw the Bill from the Senate and have it put to a Referendum.
In the Senate, the lawyers-legislators dominated the debate and openly read from briefs prepared by the Bar Council and the Incorporated Law Society. The Senate made 44 amendments and returned it to the Dáil. It came back to the Senate, with all amendments accepted, save two. The Senate accepted this and the Bill became law.
Cosgrave's attempts to exert some control on the operation of the legal system were frustrated by vested interests. Historian Joe Lee wrote: “Recourse to law remained limited to those who could afford to go to law in the first instance”.
l Anthony J. Jordan is the author of WT Cosgrave, Founder of Modern Ireland . His forthcoming book is, Arthur Griffith with James Joyce & WB Yeats - Liberating Ireland .