The case I was making when the House broke for Questions was essentially on the basis of asking the question whether the attempt to meet the hard case of the inofficious will would bring in its train a succession of undesirable legal consequences. In support of my view I had pointed out, firstly, that the very fact that the Bill itself in its first draft had to envisage exceptance and provide for these exceptions was a certain indication that the principle enshrined in Part IX was not as all-embracing or should not be as all-embracing as it would appear to have been at the outset. That suspicion was reinforced by the fact that the Minister, for very good reasons, was removing subsection (4), but in so doing was leaving room for further censure and, I fear, the necessity for further corrective provisions. I said that these symptoms in themselves were a pointer to the fundamental issue involved and it was necessary to ask the initial questions over again.
Furthermore, when one considered the position of dependants, the position of disposing all to a wife, the position of the independent child as against the dependant child, the small family, the small farm, and the other matters I mentioned, which were mooted at large, it seemed to me a very good case had been made for reconsideration and that, in fact, it raised the whole question as to whether this particular part of the Bill—parts of the Bill are excellent—should be allowed to stand. I had, both hypothethically and otherwise, dealt with the consequences of the Bill in particular cases.
I want to emphasise again the essential nature of the points I was making. It is not that many of the objections I put forward, and that have been put forward by others, are not also exceptions. They are. Let us face this. Both in a number of the exceptions in the Bill and in its root cause, inofficious will, we are dealing with exceptional cases that are not too numerous. But that is all the more reason for asking: do these exceptional cases compel us to legislate for them, whether directly in the case of the inofficious will or indirectly to deal with the consequences afterwards?
I personally feel in grave doubt on the matter. Leaving the consequences, which I think I dealt with fairly adequately before Question Time, the consequences of a will with these new provisions in it, I want to come again to this question of the disposition of property before death. A colleague remarked to me during lunch that in practice there is very little likelihood that a testator will denude himself for charity or some such purpose, that before his death human consideration will see that he keeps his property. There is force in that. It will be only the exceptional man who will do the other thing. I agree with that. Equally, it will be only the exceptional man who will forget his family, who will make the inofficious will. If the exception in one case is enough to compel legislation, the exception in the other case is probably enough to compel excepting legislation and, as I say, you get further into the mass of complexities I spoke on.
There is one point I did not make but I will make now in regard to disposition before death. Perhaps I took a rather unfortunate example when I said disposing of it to charity, but there are cases where a man may very well dispose of his property before death, very many cases which will be hard to decide in a situation like this. For instance, suppose we put the position another way. The man wishes to have more money, to enjoy a better income, he wishes to live in a bigger house or to change his mode of living. What is to stop him selling the property which he owns and then spending the proceeds? The point is this, that if we make a provision in law that he must leave so much under certain conditions in certain ways that he does not approve of, we are practically inviting him to do some such other thing as I have said. Furthermore, there may be dispositions in the last three years of his life; there may be even a question of death duties—that would apply to large estates—but I could not enumerate the considerations that might prompt a man to dispose of his property during life. He will find ways of doing it if you do not prevent him turning his property into cash—and it is very difficult to see how you can. If I own a house and in my declining days I have only a small pension, as many people have, and I decide I am going to live a bit on my capital, who is to say I should not do it and, once I have converted it into money, who is to trace how I have spent it?
These are all practical difficulties. They are not difficulties in principle. They are not the type of difficulty that, again, the academic lawyer or the lawyer in the university will think about but these are the practical things that the practical man will do.
Therefore, you have the dual objections of the futility of trying to tie him up. The more ingenious you are with legislation the more ingenuity will be exercised against you and the more complex your legislation, which is a disadvantage in itself, the more opportunities you give, and you still do not succeed. On the other hand, you bring in a period of uncertainty.
Take a genuine case of a man with a small pension and property who wishes to dispose of that and, so to speak, absorb his capital. He dies within three years. The whole transaction is immediately suspect. It will not take much ingenuity to represent it, given some little straw to grasp at, as having been done with the intention of defrauding the intention of the Act. Who is to judge that? It will have this effect, that if there is any question of that, both the value of his property will be depressed as well as the actual saleability because you are bringing in what might be called a defect in title.
I could go on probably for the next hour multiplying possible examples of this kind of thing. Some of them might be probable; some of them might be most improbable; but it suffices that they are possible. Then I raise the question again as to whether our initial departure is a good one when it involves such consequences as these.
So far, I will admit, I appear to have been merely destructive in dealing with the matter. I may have appeared to be imaginative when I suggested that if it was for the benefit of the family in one way it was against the family in another. I think that point could be developed but I will not develop it because, quite frankly, I think it is straining things either way to represent this provision as regards testamentary disposition as being either a grand bond for the family or a great potential cause of dissolution of the family. It is neither and an argument based on such abstract considerations is of little force compared with the arguments that can be advanced in the more relevant and direct way.
If there are tendencies in the present law of devolution towards breaking up the family, there are also tendencies in it and possibilities in it which greatly unify the family and exactly the same thing can be said about the provisions in this Bill which are, of course, another type of legal approach to the problem. So, for that reason, I do not think I will expatiate any further on the alleged social importance of the thing no matter how it might appear in an academic discussion.
On the other hand, as I say, I have been attacking this, if you like, all from one point of view. It is high time somebody asked me the question, and I ask the question myself—what are you going to do about it or are you just going to sit back and do nothing? That is a fair question. My answer to that is, sometimes doing nothing might be better than doing something if doing something is going to make the last state of that man worse than the first but I do admire the attitude of mind that wants to keep up to date and wants to do something and for that reason I find myself, once again, stimulated by Deputy John A. Costello whose valuable contribution this morning I have already commented on and whose experience and views should not in such matters be lightly cast aside by this House.
I think the kernel of the matter is the discretion of the court and that what is really wrong in these provisions in principle is that we are attempting to find a solution outside the spirit of the legal system which we operate. We are too ready to assume that judges and those administering and operating the law will be unreliable and too gullible or ready to think that because it appears nice and orderly on paper the provisions of codes or rigid provisions in enactments will, when it comes to the practical and social operation of the law, have an advantage. That is a mistake. This Minister has the advantage of having an expert knowledge of the situation and I am going to ask him would he not reconsider all this from the point of view of the system of law which we are operating here and also from the point of view of judicial discretion and the whole spirit of the legal system which we are operating here and see whether a solution within that framework can be found rather than attempt to seek a solution from extraneous jurisdictions and jurisprudences.
I want to take this opportunity to digress slightly and I think I am in a position to do it. It is time that we in this House should be careful to consider the importance of our legal system, not only of our courts but the whole legal system and the wonderful job it does for the country and the wonderful standard of justice and fairness that there is here. Nothing is perfect. There are objections. But there was a time in this country when it became very fashionable to run down politicians and public institutions. It went so far that it nearly got to the stage that people would be ashamed to be public representatives.
Let me pay tribute to those in this House from the leaders on this side, of our Party, to the leaders of the other Parties, and not least the Taoiseach and Deputy John A. Costello and men like him who had to fight and had to point out the honourable and useful role of the parliamentarian, of Parliament, of public men and public bodies. We ourselves have had to fight for that and we have had to suffer slander and sneers from people who should have known better. Is it good enough now that the legal profession should come in for this cheap sneering? The legal profession, any more than any other profession, do not exist merely for selfish purposes. They are professional men, whether barristers or solicitors, but they are honourable men and are giving great service to the community. These men are the custodians of the freedom of the individual which is enshrined in the Constitution.
I hope I will be pardoned for bringing a personal element into this but I can talk perhaps from a privileged position because I did not set out to be, nor was I by first choice a professional lawyer. However, for many years I practised at the Bar to earn my living. I was a barrister and I know what happens in the courts and I know the solicitors. I can talk now because I am no longer at the Bar. I feel it is up to me to say what I am saying. I have no personal interest whatever in this but I do think the remarks about lawyers that were made by Deputies here yesterday were very unworthy. The people who are making these remarks would be the very people who would talk about the freedom of the citizens and all that. I know this is a digression but I am taking this opportunity to say what I am saying about some rather unworthy remarks which were made in the course of this debate.
I have known the courts and lawyers. Perhaps I joined their ranks as a sceptic but I can say from my experience that if the standard of professional knowledge and conduct by and large was as high everywhere else in the community as it is among the barristers of Ireland, then perhaps many of the abuses for which we have to legislate would not be there to require legislation.
These comments are not made merely in defence of lawyers. These remarks have been made far too often. In this Bill there is an issue that is coloured to some extent by the type of unworthy thinking that is behind remarks about lawyers. Our law is there and our judges are there for a purpose and they are doing their work with integrity and to the best of their knowledge. There will be human variations of judgment and you will not improve things by transferring that function to an officer in the Civil Service or somewhere else. They are all equally good but equally fallible. We have a legal system which has worked well on the criminal, constitutional and civil side. That system has a tradition. It has a certain wholeness about it and a great many merits, and anyway it is the system which we have got. We should look for our solutions within that system. It is dangerous to run outside and to try to graft ideas on to our system without paying attention to the characteristics and the nature of the system as it is.
To the academic lawyer, the English law and the system of law we have is untidy as compared with a code but it has one very great merit. It grew and it grows with the community. It has a natural growth. That is why in spite of these codes and other developments throughout the world, there is a merit in the common law custom and what has evolved from it of English jurisprudence which carries it over a long period of time because of its flexibility.
What we should be trying to do here is constantly to get away from the complexities that grow with the system. It is a growth matter. We should always aim at simplification. It is a fallacy in law as well as in many other things to think we are legislating for all time. We are not. Foreseeable periods are what we are legislating for. Why this digression? One reason is that there has been a certain reluctance to trust our own judges and lawyers, perhaps because of the type of remarks I have heard on occasions. The other reason is that the approach I would prefer here—and let me say I do not claim infallibility—