I have followed the discussions in the Dáil on this Bill through the reports and I find myself in a certain difficulty. There are two issues raised, both, it seems to me, of major importance. One affects the State finances, balancing Budgets and such like, for which the Minister here is responsible. The other affects constitutional and political matters touching the liberties and security of the citizen. I think the latter is the matter of greater importance. Dealing with the former first, the objections to this Bill that have been raised so far here have been on the ground that the Guarantee Fund system is inequitable and unwise and, particularly in view of the present size of the defaults, that it will have a serious effect upon local government finance. It is said by numerous people, including colleagues of my own, that the dislike of this Bill is on the ground that it is wrong to make the public pay for a private debt. I think that is a misguided argument, because it appears to me that the consequence of the failure to pass this Bill would be mainly to transfer the liability from the local ratepayer to the national taxpayer and the public would be called upon to pay a private debt in any case.
I may say that what I am putting forward to the Seanad is entirely my own view and may or may not be accepted by my colleagues. I think a strong case can be made for a change in the Guarantee Fund system. The Minister has referred to the amendment put forward by Senators Wilson and Sir John Keane in 1933. I said then that, whatever might be said against the Guarantee Fund system, any change ought to be done deliberately and as a matter of general financial policy and not be incidental to a Bill having a different purpose. I say the same now. I think that if that system is to be changed it ought not to be incidental or, as one might say, accidental owing to a fault of draftsmanship or negligence or lack of vigilance on the part of the Legislature. On that score I think the arguments against the Bill fail and are not justified.
I think there is, on the other hand, a very strong case, from the point of view of the State, for throwing the liability upon the local ratepayer for the defaults of land annuitants. I think that case is very greatly strengthened by the fact that there is a very widespread reluctance to assist the legal processes of rent collection by purchasing things put up for sale by the sheriffs. Recent experience of the objection to purchasing farmers' seized goods at sheriffs' sales makes one feel that if the liability is not brought home locally, if it is going to be diffused very widely, much more widely, by being put upon the national fund, the whole proceeding of rent collection by the process of law is destroyed. It astonishes me to find people who are very staunch upholders of the social system based upon private property here taking part and assisting in that very corrosive movement which would ultimately, I think, destroy one of the foundations, at any rate, of that particular system. Consequently I think, from the State point of view, there is a great deal to be said for this system of throwing the liability upon the locality, rather than upon the wider State taxpayer. It is arguable, however, and I think there is a great deal to be said on both sides of that case. As I have already said, I do not think it ought to be done by accident or be incidental to a larger issue. But I am concerned with the part which deals with the retrospective effects involved in this Bill. I said that I was in somewhat of a quandary. When I first began to take an active part in legislative processes one of the early lessons impressed upon my mind was that it was not what was the intention of a Minister, or of members of the Dáil, or members of the Seanad, that would tell in the courts, but what was in the Act. Every year's experience, since that time, has confirmed those early lessons. Now, however, we find the Minister and—more serious still, in my opinion—the Attorney-General proclaiming a doctrine which destroys, to me, that lesson; and I am wondering how far I misread the desirable lessons to be learned, or how far the Minister or the Attorney-General are departing from what I assume to be a fairly well-established rule. I never thought, and I do not think now, that the retrospective action of any legislation is always prohibited and in no circumstances to be departed from. I realise that circumstances have arisen, and will arise, when legislation must be retrospective in its effect; but those circumstances, or those cases, ought to be very few —as few as possible—and only to be adopted with the greatest possible reluctance. With even greater reluctance, however, ought the Legislature to proceed to make new laws affecting a case which is at the moment before the courts. It is that part of this Bill which strikes me as being very serious and probably ruinous to the reputation and to the credit of the State.
There was a case—it has not been very much referred to in the course of the discussions—the case of Lynam and Butler. That case was the subject of a special Act. The plaintiff therein sought to appeal to the Privy Council from a judgment of the Supreme Court here, and a Bill was introduced by the late Mr. Kevin O'Higgins, then Minister for Justice, and, with the greatest reluctance, was eventually passed into law. Mr. O'Higgins, in this House particularly, but to some extent in the Dáil also, brought forward many precedents to justify the retrospective effect of that Act. Let us bear in mind that the reason that it was eventually passed and that the Opposition were overruled—by general consent, I must say—was because it was an appeal to the Privy Council, a court outside this country, in a private matter which was quite foreign to the purposes of the Constitution. As I say, it was with the greatest possible reluctance that the House accepted that measure and, notwithstanding all the precedents that were quoted, I think that not one was a precedent which dealt with legislation which was then before our courts. They all dealt with changing the law after it had been declared to be what the courts said it was.
This, however, is what puts me in a quandary. We have the Attorney-General, who is the chief legal adviser of the Ministry—I am quoting from Column 2003, Dáil Debates, 5th December, 1935, saying:—
"...if, as has frequently happened, the House has not made clear by its legislation what precisely are its intentions, then this House has the undoubted right during any stage of litigation, either before an action is commenced, during the hearing of the proceedings, or after an action has been concluded, to say what, in its view, the law was intended to be."
The Attorney-General there said "the right," but I presume that he meant to say "the power." He also used the phrase "the House," and I presume that, when he talks of "the House," we may really give him credit for meaning the Oireachtas. Now, that is the doctrine that the courts here are expected to follow. If that is to be taken as the accepted principle upon which our judges are to act, it seems to me that the next step would be to have quoted in the courts the speeches of Ministers and the speeches of the Opposition, in order to find out what was the intention of the Legislature when putting its will into statutory form; and I can see that that is going to bring the courts into political controversy, or that the courts are to say what the law is as intended by the Ministers. Now, that was not merely a single expression of the Attorney-General, which might be thought to have been unpremeditated. He went further. He said:—
"Why should it be left to the courts to say what was the intention of this House on a question of construction? Are we to submit to the position that this House is leaving it to the courts to say what its intentions were?"
Frankly, I thought that it was the business of the courts to construe the laws as set out. Apparently, however, that is not the view of the Attorney-General. The Attorney-General further said:—
"What the courts say is: ‘What were the intentions of this House as expressed in its Acts?' If the Acts do not express its intention, I submit that every Deputy will agree that this House clearly has the right to say what its intentions were."
During the course of a legal action where there are two disputants, and where the Minister has a view as to one side of the controversy, or as to the rights of one party to the litigation, he can come forward and say what the intentions of the Act were, even though the Act is before the courts to be construed as the courts themselves determine. It is very like—shall we say—the case of a football team, where a dispute has occurred as to a point, and, before the referee has had time to decide, the rule-making authority is called upon to say what its intentions were in making the rule, that rule-making authority being governed by one of the parties to the controversy. It is a doctrine that seems to be foreign to everything that has been said hitherto in my hearing, of anything that I have read on this matter or was coached into believing as the right constitutional doctrine as between the citizen and the courts.
I want to draw attention to this fact also: that once a case has got into the courts, a case in which the State is on one side and a group or an individual on the other side, before the courts the State is merely an individual litigant. It is not the State as the sovereign authority, but the State as a litigant, as equal with the plaintiff or the defendant, as the case may be, that is before the courts, and for one of the parties to this litigation to come before the Oireachtas and ask it to say what the law is, when that party itself is in litigation, seems to me to be indefensible.
The Minister for Finance, speaking on this Bill in the Dáil—I quote from the Dáil Debates, December 5, 1935, column 2075—said:—
"...If we were to permit the courts to find that there had been a flaw in regard to this Guarantee Fund procedure, I am certain that the reactions upon the public funds would be disastrous. We cannot, no matter what the hardships, at the present stage, just when we are emerging from our difficulties, when the country is getting solid ground under its feet again, and no matter what the cost, contemplate that as an outcome."
The Minister, speaking in the Dáil on the 10th December, 1935—I am quoting from the Dáil Debates for that date, column 2216—further said:—
"Are we going to wait until people have wasted their money, until judges have wasted their time, until we have a decision which may or may not be in accordance with our interpretation of the law: which may or may not be inconsistent with the intention of the Legislature; and if it is inconsistent, are we to follow this regrettable precedent—"
which was the case under discussion quoted by a previous speaker—
"and bring in a Bill to reverse the decision of our own Supreme Court? No. Before people waste their time; before people waste their money, and before the public services are disorganised, we come in here and say that if, as some people allege, the Statute, as it was enacted by the Oireachtas, is ambiguous, we will clear up the ambiguity before the matter goes to the judges."
Now, that is the Minister's defence: that there may be considerable consequences and that there is ambiguity, and, because he had the intention, or his colleagues had the intention when they came to the Oireachtas to enact a certain piece of legislation, and that it was not precisely stated in the Act that emerged, he can come along, having become a litigant, and ask that the law-making authority is to declare what its intentions were, the other litigant believing, presumably, that the intentions were different.
But the Minister has no fears of what the courts will decide. He does not think the Statute is ambiguous, and, I take it, the Attorney-General agrees with him that there is no ambiguity in fact, because they have both said that the actions in the courts were frivolous and vexatious: that there could be little or no risk in allowing the proceedings to continue because the chances of success against the Minister were of the slenderest. Now, I have the view that even if the chances of success were much greater than they are, the danger to the State credit is much greater by enacting this kind of legislation than any repercussions on the public finances. Of course, one always has to look at a thing from the Minister's point of view.
He is the Minister for Finance and he is thinking in terms of public financial credit, but there is something bigger than that and more important, and that is the public credit for safeguarding the liberties of the individual citizen: of giving a sense of security to the individual as a citizen. It seems to me that that is more likely to enhance public credit in the true sense than any temporary safeguarding of the public finances.
I frankly cannot understand why the Minister should take this line. He knows that it is within his power, within the next few months, to correct, by a readjustment of the Estimates, and the Appropriation Act, in distributing his additional agricultural grants, and so on. In that way he could make all the corrections that are necessary if the law does go against him and if the courts do decide that the Minister had not the power that we thought he had. Once that decision is come to, unless it is the general ministerial policy to alter the law in regard to the Guarantee Fund, then is the time to come to the Legislature and ask for retrospective legislation. He can correct his financial maladjustments through the Estimates and through the distribution of the additional agricultural grants, but from the point of view of the integrity of the relation between the State and the citizen, and for the true political credit of the country, I think the Ministry have made a sad mistake in proceeding with this Bill, and I think that even worse were the arguments which were used, and which I have quoted, from the Attorney-General in defence of the measure.