DAIL IN COMMITTEE. - ENFORCEMENT OF LAW (OCCASIONAL POWERS) BILL.

SECTION 1.
(1) For the purpose of the application of Section 11 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922) to Section 1 of the Sheriffs (Ireland) Act, 1920 (10 & 11 Geo. V., ch. 26), the member of the Executive Council for the time being Minister of Home Affairs shall be deemed to be the Minister or authority exercising in Saorstát Eireann functions the same as or corresponding to the functions which prior to the 6th day of December, 1921, were in the area now comprised in Saorstát Eireann exercised by the Lord Lieutenant under the said Section 1 of the Sheriffs (Ireland) Act, 1920, and accordingly all the powers conferred by the said Section 1 shall be vested and exercisable by such member of the Executive Council and the expression "the Minister" wherever the same occurs in this Act means such member of the Executive Council.
(2) No oath of office or other oath shall be administered to or required to be taken by any person appointed after the passing of this Act to be Under-Sheriff but in lieu thereof every person so appointed shall before entering on his office subscribe and make a solemn declaration in a form to be prescribed by an order of the Minister that he will duly perform the duties of his office, and Section 14 of the Statute 12 George I., c. 4 (Irish), shall be read as if the making by every Under-Sheriff of the Declaration so to be prescribed were substituted for the taking of the Oath prescribed by that Section and for the making of the Declaration prescribed by the Sheriffs (Ireland) Adaptation of Enactments Order, 1922.
(3) If the Minister shall be at any time satisfied that any Under-Sheriff is by reason of illness, unavoidable absence, or for any cause whatever unable, or is unwilling, to perform the functions or properly to discharge the duties of his office for the time being, then and in that case the Minister may appoint any person (whether a person possessing the qualifications prescribed by Sub-section (3) of Section 1 of the Sheriffs (Ireland) Act, 1920, or not) to act as deputy for such Under-Sheriff during such time and upon such terms as the Minister may by Order specify, and the person so appointed shall for the purposes of any and every power authority immunity and protection given by law to the Under-Sheriff be deemed to be the Under-Sheriff for the same bailiwick, and all writs decrees and other documents in the hands of the Under-Sheriff for execution shall be forthwith handed over to such deputy, who shall deal with the same in all respects as if he were a lawfully appointed Under-Sheriff.

Mr. O'HIGGINS

I beg to move Section 1.

I beg to move:—

To substitute for the words, lines 44, 45, 46, "(whether a person possessing the qualifications prescribed by Sub-section (3) of Section 1 of the Sheriffs (Ireland) Act, 1920, or not)," the words "having the qualifications for the time being prescribed by law for an Under-Sheriff.

The position is this. At present the Under-Sheriffs, who have very much less power than the substitutes appointed under this Bill to do their work, who will be autocrats, must be either people who have been Under-Sheriffs before, or solicitors or barristers of five years' standing, or people who have been managing. clerks to Under-Sheriffs for five years. In other words, it has been thought necessary before you make men Under-Sheriffs that you make certain that they have a clear idea of what their duty in that office is. When you are setting up what I take it is a new office and a new officer with very much more extensive and arbitrary powers than anything which the Under-Sheriff ever had, it is doubly necessary that this Dáil should be quite certain that the gentleman to be appointed shall be a properly qualified person. I do not mind much what the qualifications are. If we do not like one class of person, we may put in some other, but the Bill as drafted enables a Minister to appoint any person, and we all know that it is not the Minister for the time being who does this thing, but some particular clerk in the Home Office who has charge of these appointments, and this gentleman is to be allowed to appoint anyone he wishes. But before this it was expressly laid down that the Under-Sheriff should have certain qualifications. Now, I am not saying that it may not be necessary to appoint people outside the ordinary Under-Sheriff. We may have to do that, but we ought to know what type of man the Minister proposes to appoint, and it has been said that considerable criticism has been aroused by the suspicion that military men were to be appointed as Under-Sheriffs, and the Minister was invited to disclaim any such ideas, and I hope he does not entertain them. Although in extreme cases I appreciate the necessity of meeting force on the part of a judgment debtor by force on the part of a judgment creditor, yet I do not see any reason why the Under-Sheriff himself, or the person whom the Minister appoints in his place should be military men, and I see very strong reasons why the Army should be kept out of that kind of office. Therefore I hope the Minister will have no difficulty in accepting the principle that the man who takes the place of a Sheriff must be a person with definite qualifications, and as I say, if the Government does not like the qualifications I mention, let them put down others, but let them put down something definite, and not let this Bill provide that any person may be appointed as a Sheriff.

Mr. O'HIGGINS

I cannot meet Deputy Gavan Duffy on that amendment. I cannot agree that the position is not one which demands considerable freedom of choice in the selection of a deputy for the Under-Sheriff, should it become necessary to select a deputy at all. The present qualifications for an Under-Sheriff are, that one must be a solicitor of 5 years' standing. In any given county there may not be an embarrassing number of solicitors of 5 years' standing, and solicitors and barristers are as a class a nervous body, unsuited to the robust times in which we live. If it became necessary in your hunt for a solicitor of 5 years' standing to take a man from some other county which would involve the giving up of his business, the expense to the State would be very considerable. It is not now merely a question of finding a solicitor of five years' standing, but it may be a question of finding a solicitor of 5 years' standing and having a high degree of personal courage and civic virtue. Deputy Figgis invited me to disclaim a certain very preposterous suggestion, which he said he had heard outside. I have no doubt Deputy Figgis hears many things and many preposterous things outside, but I consider it no part of his duty to come in here and demand a disclaimer of these things, and no part of my duty to concede to such demands. I must ask that in this matter the freedom which that provision leaves, be left to the responsible Minister. The position is, and the Deputy who has down this amendment knows it, that that provision is in that Bill to meet the condition of personal terrorism which I will not say prevails, but which does exist to a certain extent in the country: terrorism by murder, terrorism by arson, terrorism in a thousand mean and cowardly forms. I could not guarantee to be able to find a sufficient number of solicitors of 5 years' standing to stand up to circumstances of that kind, but I can guarantee that if that provision is left as it is, the appointment of deputies will be a matter that will receive my personal attention. With regard to the contention of Deputy Gavan Duffy that some clerk in an office will have charge of those matters, I have only to say that I hope, in the headship of my department, I have a sense of proportion, and realise the things that are important and call for personal attention and supervision, and that I give that personal attention and supervision. This is a matter that will receive my personal attention and supervision, and if it becomes necessary to select deputies for Under-Sheriffs I shall exercise the discretion which the matter deserves.

I am disposed to support the amendment were it not for the fact that after the speech of the Minister it would seem to be a reflection upon what he has just now given in the nature of a personal undertaking: that is, that he would consider it to be a cardinal duty of his office to select the Deputy, or to see that a proper person is selected as deputy Under-Sheriff. Supporters of the measure described it as drastic. The Minister who introduced it claimed that it would be a measure of rigorous compulsion upon defaulting debtors. That was the sense of his recommendation, although I do not recall that he used those words. Now, I should like to mitigate the rigour of this very drastic measure in certain respects, which shall arise for our specific consideration later on. There is a middle course between that proposed by the Minister and that recommended in the amendment. The Minister proposes to do away with the qualifications hitherto exacted, and he has made a very excellent and, to me, a very convincing case for that, because, in the original, it is set out that among the various cases that would occur for appointing a deputy for the Under-Sheriff are cases in which the Under-Sheriff is unwilling—not that he is unwell—but unwilling to discharge his functions. So that the Minister is undoubtedly correct in saying that what he would have to look for was not so much a solicitor of so many years' standing, as a man possessed of moral and civic courage. But he did not suggest the necessity for qualifications, and for demanding certain qualifications to be possessed by those who would be appointed Deputy Under-Sheriffs. I have no doubt he would reply that, before selecting any such persons, he would satisfy himself as to their fitness, but I felt on the occasion of the second reading of this Bill that we were upon a slope, and sliding down a very slippery slope, in this particular measure. We were told that, no doubt, a great many things which might happen, and conceivably could happen, under this legislation would not happen, because such and such a Minister would not permit it to happen. I am afraid if that became the practice, as regards the passing of laws in this Dáil that, while we recognise the potentiality in our legislation of injustice, or, to put it more mildly, elements of infirmity in our legislation, yet we may proceed onwards in the passing of it with a light heart, because we rely upon the integrity and vigilance and sense of justice of our Ministers in control of the executive functions. That is substituting arbitrary government of Ministers for democratic rule, and I think in the name of democracy it is necessary to warn my colleagues against too much reliance upon the pledges of Ministers, notwithstanding the obvious character of the Minister as one in whom the most implicit faith might be put. It is not a question of personality here; it is a question of principle. I am perfectly satisfied that the Minister for Home Affairs would never appoint anyone as deputy to the Sheriff who would not be a proper man for the discharge of the extraordinary powers that are to be given to him under this Act. But I do not like the principle; I do not like assenting to the doctrine— for it may be applied later in regard to other measures. No doubt this is only to hold good for six months, but the thing will be on historical record that in an emergency we were so carried away by the desire to overcome the inherent difficulties of the position that we were willing to subscribe to this doctrine— that we were prepared to give unqualified discretionary powers to a Minister to eke out the insufficiencies or defects of a particular measure.

The Deputy, I presume, is very nearly three score years of age (Mr. Darrell Figgis—No.) and for all but three years of that time while occupying the position of a citizen of Dublin, he has grown under the very thing that he is now objecting to, by having a person appointed as Sheriff to the City of Dublin who, at his own sweet will, always appointed the Under-Sheriff for the City of Dublin. And he never knew he was under any such grievance until this morning.

We are not going to make this a measure of democracy or of anti-democracy. This is merely proposed as a mere emergency measure, and all we propose to do is to give the Minister discretion to appoint Under-Sheriffs if the necessity arises. Any person who occupies the position of Minister for Home Affairs has to make a great many appointments, in the ordinary course, which are much more responsible and difficult than appointments of the sort contemplated by a Bill of this kind. The question of such appointments is not likely to arise on more than two or three occasions. We all admit that this is a matter where you should choose the man that suits the circumstances of the occasion. I agree with Deputy Magennis that, in normal times, it would be essential to have the qualifications of any appointment, big or small, set out definitely in an Act of Parliament. We are not living in normal times, but we are living in times that are rather abnormal, and it is necessary, if I may say so, to strengthen the Executive Government, and it is a democratic thing to do. And it is simply an abuse of language to pretend that the vesting of one or two appointments of this kind in a Minister of Home Affairs is doing something that is undemocratic.

Amendment put and negatived.

I regret being compelled to have to ask permission of the Committee to make an insertion in Sub-Section 3 of Section 1, that is, after the word "time" to insert the words "at such remuneration (to be paid out of moneys provided by Oireachtas"), so that the lines would read:—

"Then and in that case the Minister may appoint any person (whether a person possessing the qualifications prescribed by Sub-Section 3 of Section 1 of the Sheriffs (Ireland) Act, 1920, or not), to act as deputy for such Under-Sheriff during such time, at such remuneration (to be paid out of moneys provided by Oireachtas), and upon such terms as the Minister may by order specify, and the persons so appointed shall for the purposes of, etc., etc."

That will be covered by the money resolution subsequently. I thought that the money resolution would be passed first. If it becomes necessary to appoint a deputy to the Under-Sheriff there would be no fund available at the moment to pay him, and it will be necessary to pay him from a central fund from the Treasury.

Who is the Under-Sheriff paid by now?

I think the County Borough Councils and the County Councils pay him under the Act of 1920. The Under-Sheriff for Co. Dublin is paid £350 a year, those for other Boroughs £250, and those for the Counties £200. "The following sums shall be paid out of moneys provided by Parliament to the Under-Sheriffs appointed under this Act." Portion is paid by the Co. Council and portion by the Government. In this case I do not expect that the County Councils will put up the extra proportion, and it is proposed to provide it by the Oireachtas. That is the need for the insertion.

I take it that the Under-Sheriff at present as contemplated under this Bill is to continue to draw his money whether he acts or not.

It depends on circumstances I should say. If he does not act I do not see how he will be drawing his money.

Then, why do you appoint a deputy?

"Unable," or "rendered unable." It is quite a different matter.

Or "unwilling."

I take it that permission is given to have this amendment moved.

Agreed.

I now put the amendment. "Section 1, Sub-Section 3, Line 47, after the word ‘time' to insert the words ‘at such remuneration (to be paid out of the moneys provided by the Oireachtas).'"

Agreed.

As that amendment is passed would Ministers not see their way consequentially to delete the words "is unwilling" higher up? It seems to me scarcely reasonable that a Sub-Sheriff might simply decline, as the section says, properly to discharge the duties of his office, and saddle the State with the remuneration of his deputy. I can quite understand where he is ill, unavoidably absent, or from reasonable cause unable to perform his duties that he should not be dismissed, but some temporary substitute should be appointed, and, of course, paid. The insertion of the word "entitled" by the mere expression of his unwillingness properly to discharge his duties and to saddle the State with a substitute, so that two stipends would be paid to two men for the same work, one who is doing the duty, and the other, who refuses to do it, would be unreasonable.

Mr. O'HIGGINS

The force of "unwilling" there is simply this. It might not be possible physically for the Under-Sheriff to perform his duties, and in that sense it could not be said that he was unable, yet the conditions might be such that he was terrorised, and consequently unwilling to take the risk of performing his duties. In such circumstances where one man a civil officer, whose duty it is to perform certain work, refuses, it might be a matter of great difficulty, it might be a matter of impossibility to secure precisely that same class of man with the same qualifications to undertake the work. While it would be a matter for consideration whether an officer who is unwilling to perform his work ought not to be summarily removed from office the question of filling that office with a man of just the same kind of stereotyped qualifications might be one of great difficulty at the time. I do not know whether the Deputy quite understands what I mean, but it might be physically impossible for a man to perform the duties of his office.

It would meet my view if the Minister instead of saying that an unwilling man be dismissed, provided that during his unwillingness a substitute should be paid out of his salary. It is only to provide against two men being paid for the one office. I do not want the Sub-Sheriff dismissed. This is only a temporary Bill, and if he says "through terror or other reasonable cause I would rather be relieved of the duties for the present" why should he draw his pay? He should transfer his stipend to a man willing to do the duty.

We have added something on line 47, and it is difficult to go back, but if Ministers would give consideration to the points raised before the next reading, or if the Deputy would put in an amendment it would meet the case.

I suggest to the Ministers that where unwillingness is the cause the unwilling man should be liable to pay his substitute.

It puts the answer, "can't" and the answer "shan't" on precisely the same level, and in doing so it puts a premium on fear. Why should any Under-Sheriff run any risk whatever if by declining on the ground of unwillingness he is no worse off? I do not think that that is a very good method of administration. I quite see the point which the Minister has made of distinguishing between two kinds of incapacity. It is not necessary a man should be physically unable, but he may from the circumstances be morally unable. The word "unwilling" means of his volition he declines, not from pressure of exterior circumstances, but as an inward decision of his own. Undoubtedly it would be a wrong thing to leave him precisely as he stands if he were to shirk the discharge of an unpleasant or difficult duty.

Mr. O'HIGGINS

A man unwilling to perform the duties of any particular office should not be allowed to remain in that office, but if circumstances arose, where the individual expressed himself unwilling to perform the duties attaching to his office—circumstances that might be such as would render it difficult to get a successor in the real sense of the word—that is, with exactly the same qualifications, to be appointed to the office under the same tenure, it would be wise to have the power that this Clause gives to appoint a person to carry on.

I suspect that there might be an added reason for the amendment as it stands, and for refusing to accept the suggestion that was made, that the Sheriffs have been appointed under certain statutory powers which define their duties. You are entitled to pay them, or they are entitled to draw from the public purse certain moneys under that authority. You are going to enlarge the duties of that office, and give the holders more formidable, more unpleasant, work to do, and put upon them the duties of a bully, rather than the duties of semi-gentlemen; and consequently they may be unwilling to accept these added responsibilities, but you will be bound to pay their salaries.

Amendment No. 2.

I move the amendment standing in my name:—"At the end of Sub-Section (3) to add —Provided that every such order shall be laid before each House of the Oireachtas forthwith, and unless and until a resolution is passed by either House of the Oireachtas within the next subsequent seven days on which that House has sat after such order is laid before it annulling such order, such order shall have effect." I do not stand over the wording, which is curious. It is the official wording taken from the official draftsman, as adopted by him in certain early Acts passed by this Dáil. I am certainly inclined and delighted to find that the President agrees with me that the official draftsman is not a very good one. The substance of the amendment, apart from the awkwardness of the wording, is practically to meet the point we had brought out by several Deputies, but to put it in a milder form. There is a considerable power exercised under this Clause, as it stands, by the Minister, and if this Bill be a right Bill— the substantial Bill that it should be—and if it is passed by this Oireachtas, and be of a temporary nature, it is inevitable that the Minister should exercise certain powers, as it were, out of hand; but it is also necessary, and it meets the point raised by Professor Magennis, that the Dáil should have some knowledge of what was happening in that matter. I think I agree with the Minister in the argument he has brought forward that it might be difficult to find a solicitor with the requisite amount of experience required by the statutes for the fulfilment of the Under-Sheriff's duties. I think, when he said it might be difficult to find a solicitor of 5 years' training, with the necessary civic duty, that was a little hard on his own profession, but, perhaps, that was a little slip of words on his part. I do urge that there are powers conferred which require to be watched, and which the Minister should desire the Dáil to watch. I mentioned here, when this Bill was before us for Second Reading, that it had been stated, and in quarters not ordinarily subject to rumour, that it was the intention to appoint military officers, and the Minister suggests that a rumour such as that should not be repeated in the Dáil. I hold a very contrary view of the Dáil from the Minister, apparently. I believe this is the place where the nation should hear authoritative statements, and I did put forward a rumour on the Second Reading, expecting confidently that at the end of the discussion the Minister would have taken the opportunity of knocking it on the head. He did not, and it spread since then. His disclaimer to-day will, I hope, be accorded the same currency that the rumour originally got. In any case, whatever kind of person, or whoever should be appointed, it would be a good thing for the Dáil if it was kept informed of the persons being appointed. I can realise that it would be difficult to expect extended notice to be given, and therefore I have kept the amendment as short as I could under the circumstances— 7 days instead of 21 days that we have put into similar clauses in other Acts. I hope the Minister will consider this amendment, because I believe it is a sound democratic principle in the first place, and in the second place I believe it will lead to public confidence, and I hold that the two reasons are not wholly unconnected.

Mr. O'HIGGINS

I must still differ with Deputy Figgis on the question as to whether the Dáil is the proper place or not to retail gossip. I understand that a restaurant is being started in connection with the Oireachtas, and whenever such a restaurant is started, I would be glad, over a glass of soda water and milk, to answer such questions as Deputy Figgis has raised. This amendment I do not intend to say much about, as it is more or less in the nature of a vote of no confidence in myself. I think, if I am fit or qualified for the position I hold, such a matter as the appointment of a deputy for an Under-Sheriff, under certain conditions which would incapacitate such an Under-Sheriff, from acting, is a matter which might very well be left to my notorious discretion. If Deputy Figgis is inclined to press this amendment, and if there is any enthusiastic following behind it in the Dáil, well then, with the best grace I could muster, I would bow to that wave of emotion, provided that the order appointing a deputy to the Under-Sheriff— I expect that is what Deputy Figgis is aiming at—shall have effect unless and until repealed by law.

I am going to vote for this amendment if it is pressed to a vote, as an alternative—a poor alternative—but still, an alternative to my own. I say a poor alternative, because I think the other one was considerably clearer. It is a pity that Ministers are apt to take these matters as personal. Now, the Minister for Home Affairs must realise that when this Bill is an Act it will have quite a long life—six months, I think, it provides for. A number of things could happen in six months. That is why, when he gives personal undertakings about what he will do, he is not really meeting the point of the objection. It is not a question of any individual Minister. It is a question of putting into the power of a Ministry that may be—not, of course, under the present dispensation, but under another one—a dangerous power, and, therefore, I am sorry that the Minister did not accept my amendment. I am going to vote for this one, unless he saves us the trouble of going to a vote by graciously agreeing to it himself.

Mr. O'HIGGINS

Anyone who is qualified for the headship of the Home Affairs Department, or anyone that the Dáil or a President would put into that position, ought to be capable of exercising the amout of discretion which is necessary to the proper appointment of a deputy for an Under-Sheriff.

I am rather surprised that this amendment should have been pressed. What does it amount to? If the necessity should arise, I take it that the appointment should be made without delay, if you are to carry into effect the real purpose of this Bill. It is said that this Bill is drastic. Certain machinery has been found ineffective, by reason of the fact that the central authority was weakened and the circumstances arising from the weakness of the central authority are well known to everybody, and it requires strengthening. What is required is that an order appointing each Sub-Sheriff should be laid on the Table, and each Sub-Sheriff so appointed, if at all, shall be a cockshot for everybody over the county. Is not that really what it means, that you want an advertisement for the person appointed to take up a responsible position in each county to carry out the laws that are given in your Courts functioning under the name of this Dáil? It is an unreasonable proposition, and I do not think that it ought to be pressed. For many years the central authority in this country, not having the support of the people behind it, made appointments of Sheriffs all over the country every year. No exception was taken to this method of appointment. A democratic assembly is set up, and certain people are entrusted with authority, and somebody must carry out certain regulations. Those people, find it necessary to assert the authority that everybody here wishes to see asserted, an exception is taken to it, and certain people think that an advertisement—probably with a photograph of each Under-Sheriff, should any be so appointed—should appear in the Press. That would not tend towards the purpose that we have in view. It would not be any improvement on the machinery, and it is more than possible that it would damage the usefulness of the person so appointed, because some debtor in the particular county in which he was appointed would probably write to every single representative of the constituency and say: "You ought to object to So-and-so being appointed, and if you get him knocked out it will take them another week to appoint another, and we will see if we can get him knocked out in the same way."

The President has just used a word which has been used several times in regard to the position of this Dáil—that it was opposed because it is too drastic. As far as I and the Deputies on this side are concerned, it is not opposed because it is too drastic. It is opposed because it is too drastic in the wrong direction; it is putting a premium upon rough and tumble or "rough and ready law," as the Minister for Agriculture described it, irregularism under the guise of the law. It is because of that that the Bill is opposed from these Benches, and not because it is drastic.

But surely it is not put up by the Deputy who has just spoken that this particular feature is Irregularism?

I got in what I wanted to say on the Bill as a Bill.

I know. When a man gets a decree in the Courts—because the expenses of keeping up the Courts is paid out of his taxation—he gets a decree and finds that it is not possible for the Sheriff of his county or the Under-Sheriff of his county to present him with the amount so awarded in the Court. We seek to set up certain machinery. If there be a defect in it— if it be thought that out of a panel some suggestion could be made whereby you would have a list of more competent persons than it is possible for the Executive to appoint—there is some sense in criticising this proposal, or asking that such an order should be put on the Table. But no such suggestion has come forward, and everybody knows that at this moment the more criticism that there is of the manner in which administration is carried out by the central authority, the more Irregularism is bred. The sense of suspicion that there is in the Dáil through certain persons—I do not mean to say all of the Deputies —is bred right through the country, and people say: "Surely if their own friends suspect appointments such as these there must be something wrong." I cannot see any sense in the amendment; I cannot see how it improves the Bill; I cannot see how it renders it less drastic, as some Deputies have mentioned, and I do not see how it will effect the purpose that Deputy Figgis has in his mind.

Deputy Johnson describes this Bill generally as irregularism under the guise of law. This Bill sets out exactly the powers of Sub-Sheriffs and defines them, and does no more than to take steps to give the Sub-Sheriff effective support in carrying out what he is asked to do, and that is described by Deputy Johnson as irregularism under the guise of law. This is a Bill to make the law effective. It is a Bill to ensure that when a County Court Judge comes down to any county and gives a decree to any man who is owed money for the goods he sold across the counter, that that decree shall be effective, and that is what is described as irregularism under the guise of law. That is a misuse of language. Now with regard to rough-and-ready law—rough-and-ready law is better than no law at all.

Ku Klux Klan.

With much of what the President has said I might be in agreement. This Bill has been described as a drastic one, and a Deputy described it as ferocious. If it be drastic, if it be ferocious, these qualities in it will be exercised by certain persons who will act either as Under-Sheriffs, or who will act on behalf of these Under-Sheriffs. The provisions themselves as they are put into effect will, or will not, be tempered by the persons who put them into effect, and for that reason it is of the very first importance that this Dáil should see that the right persons are appointed for these positions. When I urge that, the Minister for Home Affairs replies with a pleasing mixture of humour and asperity. I object neither to humour nor asperity—I am always willing to retort with both when they are required. He says that this is a motion of no confidence. It was not so proposed, but seeing that he has evoked the taunt I think the thought is eminently justified, because appointments have been made in the country that have been defended in the Dáil—appointments of profit and suggestions for appointments—and the Ministry must know, and the Dáil must know, that these appointments and these suggestions have aroused no confidence whatever in the country, and for the reason that was stated by the Official Whip for the party, for whom the Minister speaks, and that is that they are proposing to find jobs for the fighting men.

I think that this amendment shows no sense of proportion, and, moreover, I am inclined to think that it probably indicates that the Deputy who proposed it did not scrutinise very carefully the Clause he proposes to amend. As far as I can see the Order will specify the time and terms of remuneration upon which a deputy to the Under-Sheriff may be appointed. Now the time must be less than 6 months, and as to the remuneration the Dáil will have an opportunity to review that when it is providing money, because the Dáil will have to pass some form of resolution providing the money. The terms, I think, can only be something detailing and expounding matters already set out in the Act, so that Order, therefore, will be a very formal Order, an Order of a very temporary nature, and not such an Order as should be laid on the table of the Dáil. Orders, when we view things with some idea of proportion, that ought to be laid on the table of the Dáil, and give the effect that is given to Orders by being on the table of the Dáil, should be Orders that do something in the way of legislation, and not mere executive Orders. You do not lay on the table of the Dáil an Order or decision which decides how a charwoman shall be appointed, and the terms upon which she will hold her office. To press an amendment like this is to be without any sort or sense of proportion, or any idea of the things that are to be brought before Parliament and the things that are not to be brought before Parliament.

Amendment No. 2 put, and declared lost.
Question put: "That Section 1 as amended stand part of the Bill."
The Dáil divided: Tá, 35; Níl, 9.

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Uáitéar Mac Cumhaill.
  • Seán Ó Maolruaidh.
  • Seán Ó Duinnín.
  • Mícheál Ó hAonghusa.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Darghal Figes.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Ailfrid Ó Broin.
  • Pilib Mac Cosgair.
  • Mícheál de Staineas.
  • Domhnall Mac Cártaigh.
  • Maolmhuire Mac Eochadha.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Liam Mag Aonghusa.
  • Pádraig Ó hÓgáin.
  • Seoirse Mac Niocaill.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Séamus Ó Dóláin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Séamus Ó Murchadha.
  • Liam Mac Sioghaird.
  • Earnán de Blaghd.
  • Domhnall Ó Broin.
  • Séamus de Burca.
  • Mícheál Ó Dubhghaill.

Níl

  • Tomás de Nógla.
  • Tomás Mac Eoin.
  • Seoirse Ghabháin Uí Dhubhthaigh.
  • Aodh Ó Cúlacháin.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Ceallacháin.
  • Domhnall Ó Muirgheasa.
Motion declared carried.

Mr. O'HIGGINS

I beg to move Section 2 as follows:—

(1) From and after the passing of this Act it shall not be obligatory upon any Under-Sheriff to employ any bailiff to assist him in the execution of a writ offieri facias or writ of habere or to employ any bailiff appointed under Section 5 of the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 (27 & 28 Vict., ch. 99), to assist him in the execution of his duties under that Act, but in lieu of or in addition to such bailiffs it shall be lawful for any Under-Sheriff to employ such and so many persons as he shall think fit to assist him in the execution of any or every writ of fieri facias or writ of habere and of any or every decree (whether for debt, possession of lands or otherwise) of a Civil Bill Court.

(2) Any person employed by an Under-Sheriff as bailiff under this section may be employed at a weekly or other wage to assist him generally in the execution of such writs and decrees as aforesaid or may be employed specially to assist the Under-Sheriff in the execution of a particular writ or decree.

(3) Wherever persons are employed by an Under-Sheriff under this section to assist him generally in the execution of such writs and decrees as aforesaid the number and rate of remuneration of such persons shall be subject to the approval of the Minister, and the sanction of the Minister of Finance.

(4) Wherever any persons are employed specially by an Under-Sheriff under this section to assist him in the execution of a particular writ or decree the number and remuneration of such persons shall be in the discretion of the Under-Sheriff.

(5) Every person employed under this section by an Under-Sheriff to assist him in the execution of a writ offieri facias or a writ of habere shall have all the powers which are by law vested in a bailiff employed by an Under-Sheriff for that purpose, and every person employed under this section by an Under-Sheriff to assist him in the execution of any decree of a Civil Bill Court shall have all the powers which are by law vested in a bailiff appointed under the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 (27 & 28 Vict., ch. 99).

In moving the Section I have to ask indulgence for a similar insertion to that which I made in Sub-Section 3, Section 1, namely, to insert in Sub-Section 3 of Section 2, after the word "persons" on the fourth line:—

"To be paid out of moneys provided by the Oireachtas."

The alteration is necessary, because it may be necessary to offer a man an engagement over a period at a fixed remuneration. The present procedure is that they get special fees for particular work. There is a scale of fees laid down. If men have to be engaged for a period they must be paid from the Central Fund that will be always available. If that is to be done the fees that are recoverable in seizures from time to time will revert to the Treasury in recoupment of the weekly payment, or towards the recoupment of the weekly payment. I do not think there is anything special in the Sub-Section calling for comment by me.

The Minister's amendment will come after the amendments which are on the paper.

I beg to move:

To insert before the word "persons," line 9, the word "suitable."

This particular Section is one of the most important in the Bill. I do not know whether it is generally appreciated that the proposed Statute is by no means confined to small debts or County Court operations, and that executions for enforcing High Court Judgments and Orders also come under it, so that its scope will be a much wider one than was at first supposed. The first amendment I have to this section is only the insertion of one word, the word "suitable."

Mr. O'HIGGINS

I accept that.

Amendment put and agreed to.

Perhaps the Minister will include a corresponding word in Sub-Section 3, line 20, and make it read:—

"The number, rate of remuneration and suitability of such persons shall be subject to the approval of the Minister."

The amendments on the paper are before that. We shall take the Minister's amendment in Sub-Section 3, and we shall consider that point as well.

I beg to move: —To add to Sub-Section 1 the following words:—"Provided that nothing in this Sub-section above contained shall be deemed to authorise an Under-Sheriff so to employ any person subject to military law, but if at any time the Minister shall be satisfied that a person against whom a judgment, order, or decree shall have been made is well able to satisfy the same, but is nevertheless persistently contriving to defeat the same by force, the Minister may, by warrant under his hand, grant to an Under-Sheriff exceptional authority to seek and employ military assistance for the purposes in this Section mentioned, and in any such case Sub-section 5 of this Section (but not Sub-sections 2, 3, and 4) shall apply." This amendment is one of the most important, and I hope it will be agreed to. Deputies will see that the first Section is designed to empower Sheriffs or Under-Sheriffs to employ anybody they like to help them in enforcing judgments and decrees by way of execution. I ask the Dáil to accept the principle that you are not justified in applying for that purpose military force, save only where a man is resisting by violence the payment of his just debts. I think that principle is one which must be universally accepted. The army is not recruited to collect people's debts If you get an extreme case where a recalcitrant debtor, who could perfectly well pay up, barricades his house and uses other force against the Sheriff's Officer in order fraudulently to avoid payment of that debt, then, where it is worth while, where it is not a matter of the collection of a pound or two, I would be in favour of authorising the calling in of military aid, but only in extreme cases, and the amendment I have put down is drafted for that purpose. It says:—

"Provided that nothing in this Sub-section above contained shall be deemed to authorise an Under-Sheriff so to employ any person subject to military law."

So far as a Sheriff is concerned, he has got to employ civilians, but then the moment comes when the creditor finds that he cannot get his remedy in that way, on account of the violence of the debtor, and then I suggest the matter be dealt with in this way:—

"But if at any time the Minister shall be satisfied that a person against whom a judgment order or decree shall have been made is well able to satisfy the same, but is, nevertheless, persistently contriving to defeat the same by force, the Minister may, by warrant under his hand, grant to an Under-Sheriff exceptional authority to seek and employ military assistance."

I think that it ought to be a condition, precedent to the employment of military assistance, that you have violence on the side of the debtor. There is another amendment proposed in another place dealing with the distinction that ought to be made between the dishonest and honest debtor, and I am assuming, after what fell from the Ministers the other day, that substantially we are in agreement upon that. The honest debtor is not to be touched by this Bill. We are, therefore, dealing with the case of the dishonest debtor, and I say that, even in the case of the dishonest debtor, it is bad for the army, as well as being bad from a civil point of view, to bring military interference in in order to collect debts, except in an extreme case where there really is violence, such as the Sheriff cannot deal with by ordinary police and civilian aid. I ask the Dáil to accept that principle. It is a most dangerous thing to bring the military into a performance of this kind except when you are driven to it. You may be driven to it in extreme cases—the Ministers rather outlined their idea that it would be only in extreme cases such a thing would happen—and where a particularly obstinate and violent fellow would refuse to pay his just debts, as I say, give a discretion to the Minister, because, naturally, he would not allow the employment of soldiers to collect a few shillings. It would not be worth while. I also propose that so many of these Sub-sections as refer to the payment of the persons employed by the Sheriff shall have no application to military persons employed. That is to say, that the military get their ordinary pay, and there should be no question of paying them any addition as bailiffs in the rare cases where they are called in, I take it in only one or two counties. I suggest that you give them the powers that other non-military persons should have, but not any special remuneration, and that the matter be confined to extreme cases where the Minister is satisfied that there is no other way of meeting the situation.

I have to oppose this amendment because of its implications. It certainly, in its concluding stages, contains the implication that in certain circumstances the Under-Sheriff would be authorised to seek and employ military assistance for the purpose of a particular seizure. There is no such proposal, and I do not contemplate that there will be any such proposal. But, glancing through that amendment, it occurred to me to wonder how often a man would have successfully to defeat the law by force before it would be correct to describe him as "persistently contriving to defeat the same by force." That is merely incidental. There is no question of military being employed in the capacity of bailiffs. There is a question of full and impressive military protection to the people who are so employed; protection rather of the kind to deter intervention—calculated to deter rather than to deal with intervention, when such would actually occur; protection so full and so impressive that intervention or interference would be most unlikely. But no one contemplated that the military would be asked, as part of their duties, or even outside their duties, actually to seize goods—to carry out a physical seizure. That is not their function. I have no feeling that it will be difficult or impossible to secure men to carry out that civil function as officers acting under the Sheriff, who is an officer of the Court, provided it be made clear that the resources of the State are there and will be there to protect them.

Then, is there any objection to the first three lines of the amendment?

No; because from the very nature of the position that is excluded. I would give the Deputy quite definitely that undertaking that the military will not act under the orders of the Under-Sheriff, and will not carry out seizures under the orders of the Under-Sheriff. From the very nature of the position, I should have thought that the Deputy would have agreed with me that they are debarred from any such duty, but they are not debarred, when instructed to do so by their proper officers, from giving adequate protection to civil officers in the discharge of their duty.

The Minister assures us that the emphatic words are in line six, that the Under-Sheriff may employ other persons besides the bailiff toassist him in the execution of his duties. These words necessarily imply that the Under-Sheriff may not employ a member of the army in his capacity as a soldier in military service to take part in making a seizure. The contrast is between “assist” and “protect” in the discharge of his duties. The slight alteration that was introduced with regard to the source from which the payment would be made for these services makes that additionally clear, if any additional clarity were required, because, obviously, if the intention of the Section had been to empower the Under-Sheriff to call in military force to assist the members of it to effect seizures of property, to act, in fact, as bailiffs, they would be in receipt of their ordinary military pay. But the provision of special sources for the remuneration for these especially employed people goes to show that it is not the intention of the Section to use the military in this extraordinary fashion. I take it, therefore, that the military are employed only where such breach of the peace is foreseen as to make it necessary for the preservation of order to awe opponents of the execution into refraining from interference with it. So, while I object to the ferocity of certain clauses, I detect no ferocity in this.

Who is going to pay for the military assistance when it is invoked?

I do not know quite what the Deputy means when he asks who is going to pay for military assistance. The Minister for Defence agrees with me that the present situation in the country constitutes in some ways more, and in some ways less, than a war, that it is a kind of organised sabotage, and that to meet and counter it, and to counter its various side issues and the mentality behind it, the army must be asked to perform many duties which do not attach to the regular army of an old-established Government in normal times. They must be asked to perform many duties which under normal settled conditions would be police, rather than military duties. The number of such manifestations and the extent of them in present circumstances, taken together with all the existing circumstances of the times, are sufficient to constitute a military rather than a police problem.

The point of my question was rather different.

Mr. O'HIGGINS

These men will not be paid specially. They will do those things as part of their ordinary routine duties, and the Commander-in-Chief and the Minister for Defence have agreed that it is necessary for the attainment of the objective the entire fight is being waged for, that they should be available to uphold and strengthen the civil machinery.

The point I wish cleared up is that in view of the fact that a great many new expenses are to be added under the Bill the employment of military to make a display of force will not in any way tend to add to the expenses which the debtor has to pay.

Mr. O'HIGGINS

It will not.

Amendment withdrawn.
Mr. O'HIGGINS amendment to Sub-section 3:—"To add to the word ‘remuneration' the words ‘to be paid out of moneys provided by the Oireachtas,'" put, and agreed to.

I would suggest putting in the word "suitability" in that Sub-Section, so that when we arrange that the Sub-Sheriff is authorised to employ suitable persons, the judge of the suitability should be the Minister, and not the Under-Sheriff; I do not mean as regards the individual, but as regards the class.

Mr. O'HIGGINS

I do not think it would be possible for me to examine in detail the qualifications of the people who will be employed in this capacity throughout the country. The Sub-Sheriffs will receive instructions that the men they are to employ are to be men of good character and integrity. But to refer that back to me in Dublin to satisfy myself that such was the case would be cumbrous, and besides, I am not likely to be able to form a better opinion than the Sub-Sheriff. One must delegate a certain discretion to civil officers, and if the Sub-Sheriffs simply got a reminder that these men, because of the nature of their duties, ought to be men of good character and decent men, it would meet the case.

I agree with every syllable the Minister has said. I do not at all propose to add to the arduous duties that he is already patiently bearing up with, by determining whether Michael O'Flaherty or Timothy Muldoon is a fit and proper person to assist such and such an Under-Sheriff. What I had in view is laying down general regulations legally determining what kind of person he would consider fit and proper. Consider this possibility: I am an Under-Sheriff. I am not a man of integrity. As an Under-Sheriff I employ men, otherwise engaged as touts for dealers inobjets d'art, articles sometimes facetiously described as articles of “bigotry and virtue.” It is quite easy to enter into a corrupt arrangement, and, for what is vulgarly known as a handover, to arrange for that type of sale, or non-sale rather, that is dealt with in a later section. It is quite possible for me to appoint an auctioneer to assist me, who will later assist me in another sense than in his capacity as an auctioneer. Of course, the Minister will reply that we are to put perfect faith in our fellow-countrymen, and to believe that, notwithstanding all the disorder, riot, and commotion in the country that we have still so much of our Gaelic virtues that corrupt things could not happen. We know that they do happen, and we ought to take measures to see that they will not become common in their happening. I ask for specific regulations that such and such a person shall not be enlisted to act. It may be difficult to decide just the precise category, but, at any rate, there is a certain type of respectable rogue that should not be employed.

The remarks of Deputy Magennis surprise me. He seems to be supporting a view that the Minister holds, and which runs through this Bill —that the administration and the enforcement of the law is the function of the Ministry, or any department of the Ministry, and that the Ministry may make orders and may advise the officer of the court who should be employed or who should not be employed. I am utterly at sea if that is the notion of how law should be enforced in the country. I imagine that the Sheriff, and those connected with the Sheriff, are officers of the Court, and are entirely outside the jurisdiction of the Ministry. Once the issue of a decree or a judgment comes from the Court, then the procedure is automatic, and there should be, and must be, no interference by the Ministry with those processes of law. That is not the conception behind this Bill. It is not the conception of the Minister; it is not the conception of Deputy Magennis, judging by his last speech. There is an assumption right through this Bill that the Ministry can come in and say "this shall be" and "this shall not be"; that the Ministry shall advise the officer of the Court what to do, and that they can put a veto on the officer of the Court.

Yes, by legislation.

That is an utterly false construction of what should be the process of law, and yet that idea is running right through this Bill. In all the defences that the Ministers have made for separate provisions of this Bill they have said "we do not want anything of the kind," and "we do not propose that this or that shall take place." It has nothing to do with them if this interpretation of law is a correct one. If the enforcement of law is at the discretion of any decree of the Ministry, then all criticism of this Bill is gone by the board. If it is a ministerial function, then let us understand where we are. There is only one other step, and that is to make the enforcement of the law, the issuing of judgments, the starting of processes of law, a function of the military power. That is what we are coming to. This is merely one other expression of the idea that the Executive authority for the time being, whichever it may be, is the body which has control of the legal process of the Courts. That I protest against, and will protest against to the utmost.

I already, this afternoon, spoke in language not quite so strong as that of Deputy Johnson. He was speaking to a colleague at the time when I used the sentence, and possibly he missed it. "That the substitution of the Ministerial exercise of discretion that ran through this Bill was practically the substitution of arbitrary power for democratic rule." Now Deputy Johnson says, in a more effective, if fuller form of expression, precisely the same thing. I am not proposing that the Executive should interfere after the decree of a Court has been issued against a certain debtor, and prescribe to the Under-Sheriff, then, and only then, what type of person is eligible for this appointment. I want the legislation that controls all these procedures to prescribe that such and such persons shall, or shall not, be eligible for these offices of deputy bailiff, substitute bailiff, or assistant to the Under-Sheriff in the making of seizures. I am quite as strong—I am sure the Minister himself is quite as strong—as Deputy Johnson in not proposing a revolution.

They do not propose it; they act it.

That, at times in certain sections of the Bill, it is detectable I quite agree. But I voted for the Bill because I believe, and still believe, that it is not the doctrine; that it is not the express, conscious doctrine of the Minister that he intends to make such a revolution. What I want to secure is that the Under-Sheriff may not, at his own sweet will, declare a certain type of man, because he chooses so to do, a suitable person within the meaning of the Act; just as before, the Sheriff himself was obliged to consider certain qualifications and restrictions in the selection of the Under-Sheriff. The President forgot this evening—I did not think it worth while to waste the time of the Dáil in reply—when he twitted me with the fact that I had been living without complaint under a system in which the Sheriff exercised his unfettered discretion in the selection of the Under-Sheriff and that I did not groan because— there was no such unfettered discretion. The Sheriff was obliged to select men who had certain prescribed qualifications. Similarly, I want certain prescribed qualifications for the filling of the offices I have mentioned. If the Under-Sheriff is at liberty to select men at his own sweet will, then the ferocity of these provisions becomes operative, and the innocent debtor, because of other debtors failing in their payments to him, may find himself utterly ruined under the operation of this new law.

There is really no need for the making of heated speeches which have got absolutely nothing to do with the merits of the case. Deputy Johnson seems to be under the impression that the Ministry claim to interfere in the executive acts of the Sub-Sheriff, and he says the Minister takes up the position that he will not do this, or that, or the other thing. Why not give examples of where the Ministry have taken up that attitude?

Read the last debate.

I challenge him to point out a single example in the text of the Bill where the Ministry have attempted to dictate to the Sheriff or Under-Sheriff as to what they shall or shall not do. There is no use, dealing as we are now with the Committee Stage of the Bill, making general charges, and at the same time refraining from giving a single example. We will never get business done that way. I want examples. The Bill is here.

Mr. O'HIGGINS

From start to finish of this Bill, there is no mention whatever of the military.

When defending the Bill against certain criticism, the President, the Minister for Home Affairs, and the Minister for Agriculture successively said "they had no intention to do so and so; they would not allow the military to do so and so; they would not allow this thing to happen," but I say you cannot prevent the military from doing so, if the other authorities fail in carrying out the order of the Court.

I can only speak for myself. When defending this Bill, on the first reading, I was referring to speeches made by Deputies here which seemed to be based on the assumption that the Sub-Sheriff would take extreme measures in every case.

How do you know he will not?

I pointed out that they were not to assume, that because this Bill was passed, the Sub-Sheriff would change his nature and rush out immediately, requisition the military and employ them in impressive and tremendous force to execute every debt. Whether he does so or not has nothing to do with Deputy Johnson's point, which was this: that the Ministers had said that they themselves would not allow the military to do this, that, or another thing. My only point was, that the Sub-Sheriff would not ask for the assistance of the military in cases where he could execute without them, and I put that to the Dáil as a perfectly obvious and reasonable point.

The Minister forgets that all checks upon the actions of the Sub-Sheriff under the present law are removed. When it was suggested that the result of the removal of checks would be to enable, at the will of this officer, a man to do certain things, we were told: "we would not allow such things to happen." I admit that this is a Second Reading point and not a Committee point, but I am of opinion that it should be restated.

And examples given.

Mr. O'HIGGINS

The only statement I made, which would indicate any limitation whatever was this, that while the Bill applied equally and bound the Sub-Sheriff equally, as the existing law does, that discretion would be exercised before the military arm, the military unit, would be availed of in the execution of decrees, and so it will. It is not sound to say that we cannot exercise any discretion as to the duties the military will or will not perform. We can, and we will.

Question put: "That Sub-Section 2, as amended, stand part of the Bill."
The Dáil divided: Tá, 34; Níl, 8.

  • Liam T. Mac Cosgair.
  • Donchadh Ó Guaire.
  • Uáitéar Mac Cumhaill.
  • Seán Ó Maolruaidh.
  • Seán Ó Duinnín.
  • Mícheál Ó hAonghusa.
  • Pádraig Mag Ualghairg.
  • Seoirse Ghabhain Uí Dhubhthaigh.
  • Deasmhumhain Mac Gearailt.
  • Seán Ó Ruanaidh.
  • Mícheál de Duram.
  • Ailfrid Ó Broin.
  • Pilib Mac Cosgair.
  • Micheál de Stáineas.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Néill.
  • Pádraig Ó hÓgáin.
  • Seoirse Mac Niocail.
  • Fionán Ó Loingsigh.
  • Criostóir Ó Broin.
  • Caoimhghin Ó hUigín.
  • Próinsias Bulfin.
  • Séamus Ó Doláin.
  • Eamon Ó Dúgáin.
  • Peadar Ó hAodha.
  • Liam Mac Sioghaird.
  • Éarnán de Blaghd.
  • Domhnall Ó Broin.
  • Séamus de Burca.
  • Micheál Ó Dubhghaill.
  • Liam Mag Aonghusa.

Níl

  • Tomás de Nógla.
  • Tomás Mac Eoin.
  • Aodh Ó Cúlacháin.
  • Liam Ó Daimhín.
  • Seán Ó Laidhin.
  • Cathal Ó Seanáin.
  • Domhnall Ó Muirgheasa.
  • Domhnall Ó Ceallacháin.
Motion declared carried.

I now move that the Committee report progress to the Dáil.

Mr. O'HIGGINS

I second the motion.

Agreed.