The first part of the Criminal and Malicious Injuries Bill deals with the cases that are before the Shaw Commission. We want to relieve the local authorities of their liabilities by one swoop. It will relieve us to some extent, because after that has been passed we need not seek further releases from people in the manner I explained a few moments ago. I think, if it were agreeable to the Dáil, I might propose the whole of that Section which deals with the substance of the things I have stated, and that would give an opportunity for moving the amendment which comes under it, and which, to some extent, offers compensation for the loss of legal rights that people have got now against local authorities, and defines the existence, if I might say so, of the Shaw Commission. If you will permit me I will move the first five, which, I think, will not interfere with the opinions of members of the Dáil on this matter.
DAIL IN COMMITTEE. - CRIMINAL AND MALICIOUS INJURIES (AMENDMENT) BILL, 1923.
I do not wish to go over the ground you have already covered, beyond saying that personally I shall certainly vote against the Section which does away with personal injuries, pre-Truce, altogether without giving any substitute, whereas the substitute, in fect, exists, as this Dáil knows. So far as property goes also, I think it would be unfortunate that there should be a Government amendment referring to the Shaw Commission, whereas, in fact, for some reason which I fail to fathom, we shy at incorporating the Shaw Commission, so far as we have responsibility for its acts. My chief reason for rising on this section is to ask the President whether he has considered the effect of the Constitution in connection with this retrospective legislation, which I find in portion of Section 1. If the President will look at Article 73 of the Constitution he will find there what, I suggest, is a fairly clear prohibition against retrospective legislation. Article 73 says: "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same, or any of them, shall have been repealed or amended by enactment of the Oireachtas." I merely wish to draw attention to the matter, which is more important in other sections. There is a possible, and, I think, a probable interpretation of that section which will make it impossible for this Dáil or for this Oireachtas to go in for any retrospective legislation in the same manner as we have clearly defined in the Constitution, that you cannot create a crime after the event. For the moment I merely draw the President's attention to that section, which applies even more strongly to certain other parts of the Act.
I should say that that is scarcely correct, having regard to the history of these Acts, which I have recounted, the Criminal and Malicious Injuries Acts of 1918 and 1920. It was a subject of agreement between the late British Government and the late Minister for Finance and the late President that these Acts should be repealed by us, and that the British on their part would repeal them. It was not done at the time because the Provisional Government, without a Parliament, was scarcely the body that could pass an Act of Parliament. It was generally agreed and admitted that no person who had any rights had really got negotiable rights. There were, therefore, people with huge, big decrees not one single penny of which would be paid or could be paid, and I think at the earliest moment notice of the fact was issued by the Provisional Government.
Now, as far as the Article of the Constitution is concerned, I think it must be read in the light of these circumstances, and that for the point raised by Deputy Gavan Duffy I ask how can you, in an Act, specify your liability or the liability of this State for a sum unestimated and impossible to estimate at the moment?
I am not asking you to estimate it.
You must. If you pass an Act of Parliament you must, to some extent, meet the liability, or portion of the liability, of which another State has to bear what I think in the general impression is a much larger liability. You see at once that once you admit liability for a moiety you are taking on something that it will be very difficult to get rid of afterwards.
So are they.
So far as they are concerned they have made a promise, and they have acted very well in respect of it, and to ask for an Act of Parliament in respect of that would be, in my view, suspecting them of want of good faith, and there is no reason for suspicion. All the arrangements we have made are satisfactory to me, to the Executive Council, and to all my advisers. If there was any danger of them failing, an Act of Parliament passed here would not make it safer as far as we are concerned, and I do not think there is any fear.
One word about personal injuries. I understood the objection was that most extravagant claims were made before the Truce.
Most of them.
I agree, but the President will admit that by far the larger number and the greatest amount in value of these claims represented claims of the British garrison, or what you might call the Castle people or their friends, and these, I understand from the President, have been paid by the British Government. Therefore, the people likely to be damnified by doing away with these personal injury claims are our own people whose claims are not greater, but, if my information is correct, are very much smaller than those of the gentlemen already paid.
Injuries Committed on or before the 11th day of July, 1921.
1.—(1) No proceedings under the Criminal Injuries Acts shall be instituted after the passing of this Act in respect of any injury to which this section applies.
(2) All proceedings under the Acts aforesaid which are pending at the passing of this Act in respect of an injury to which the section applies and in which no decree has been made shall be and are hereby declared to be void and to be discharged, and no party to any such proceedings shall have any claim against any other party thereto in respect of costs incurred in such proceedings.
(3) It shall not be lawful for any person after the passing of this Act to take any steps to recover or enforce payment of the amount of any decree made before the passing of this Act under the Acts aforesaid in respect of any injury to which this section applies.
This sub-section shall apply to all costs and expenses as well as to compensation awarded by any such decree and to the interest on any such compensation which carries interest.
(4) This section shall apply to proceedings in and decrees on any appeal as well as to proceedings in and decrees of a court of first instance.
(5) This section shall apply to any injury whether to property or person committed in Ireland during the period between the twenty-first day of January, nineteen hundred and nineteen, and the eleventh day of July, nineteen hundred and twenty-one, both inclusive.
I move Section 1.
I move an amendment in Sub-section (5), to add a new Sub-section as follows:—
"This Section shall not apply to or prevent the presentation or prosecution of a claim to or before any Commission of Inquiry in respect of an injury to which this section applies."
The purpose of the amendment is to make it clear that claimants are not precluded from going before the Shaw Commission in respect of claims to which the Section applies.
There is one point on which there seems to be scarcely a clear appreciation of the circumstances of the case. In this Bill we are not drawing a distinction between persons who lost property and persons who suffered personal injuries, except to this extent, that the restoration of the property is no loss and no extravagance, generally speaking because of the employment it gives. Now, huge payments for personal injuries mean sending out huge sums of money for which there is no immediate need. In other words, if a person is to get a sum of money into his pocket in respect of which he is to restore nothing to the nation there is much greater liability to be extravagant than in other cases, because the steps we have taken to ensure that the property will be restored, and the wealth of the nation will not be lessened indicates the difference in our appreciation of the thing. Take the case of a man who has met with an accident. Possibly the medical expenses amount to £100, and other expenses might amount to another £150, and the general impression amongst his friends is that he should get one thousand pounds, which means that he could put £850 into his pocket. There is a danger of extravagance in this case, and to that extent only is there discrimination between the two. In the one case it requires all the money to restore the wealth of the nation, and in the other case there is very great danger of extravagance.
Does the President know there is an amendment before the Committee?
Yes, sir, but it does not make any difference, as it does not affect the issue.
The amendment was under discussion, but the President did not say a word about it.
The President spoke of personal injuries compensation as though the only way to compensate a workman who lost his arm or his eye, or was smashed up so that he cannot work any more, was to pay him a large capital sum.
I did not mention such a case at all.
No, but these are the cases in which we are concerned. He apparently has in mind claims for the loss of life of a head constable or a D.I., where very large sums were in question, and with these in view he is forced to take up the line he has done. I presume that a tribunal or a Commission of Inquiry will be set up, and I would like to have it made a little more clear, even though I run the risk of being blamed for dullness or obtuseness, still I would like the President to enlarge a little more upon the intention with regard to this tribunal—this Commission of Inquiry— dealing with personal injuries. He made a promise on the first occasion that seemed to have something to do with cases in the pre-Truce period, because immediately after saying that there was a tribunal to be set up to deal with the case of persons who ordinarily would have claimed under the Personal Injuries, or whose relatives or next-of-kin would have claimed he said we are finally determined that no such compensation will be admitted in future. What I would like to find out is whether this tribunal is only to deal with the claims for personal injury from the pre-Truce regime which have not come before any Court—the Shaw Commission only deals with property—and will he tells us is there to be another tribunal to deal with the post-Truce cases.
No, we will deal with all from the 21st January, 1919, to February 6th, 1923, in respect of cases not already heard.
That is more satisfactory than appeared on the First Reading.
I certainly intended to make that clear on the First Reading.
That finishes all I have to say on that point.
I move Section 2.
Before I come to the first amendment standing in my name, which is to add a new sub-section, I would like to direct the attention of the President to two improvements in Sub-section (2) and Sub-section (3) that I think ought to be made before this Bill finally becomes law. It is provided that every applicant in one section who brings evidence, and in the other sub-section every applicant who serves notice of his intention to re-open the decree shall serve notice. Now, either the Statute itself ought to prescribe the length of the notice that is to be given by the applicant in the one case or by the Minister for Finance in the other case, or else there should be some provision in the Act, which I cannot find, for a rule-making authority.
Under the Local Government Act, which codified the law relating to Criminal Injuries, it was provided that a certain Committee, consisting, I think, of some County Court Judges and others, should provide rules for the carrying out of the Act. Now, this provision of a notice seems to me necessary. If there is no definite time the law presumes that the notice shall be a reasonable one, but you will always have questions arising as to whether a particular notice, in a particular case, was reasonable or not. Therefore, it seems to me proper, though I have not put down any amendment, because it is a matter rather for the Minister in charge of the Bill, that provision ought to be made for a notice of, say, a week, a fortnight, or three weeks, as the case may be, of the intention to have the matter reopened. I also suggest that something should be put in the Bill, before it finally assumes the shape of law, as regards making provision that rules be introduced for the carrying out of the Act. I think that is clearly a proper provision, because this Act supersedes all the old Criminal and Malicious Injury Acts; it repeals them, and they all provided rules for carrying them into effect. In the one case, the rule-making authority was the High Court, and in the other there was a special rule-making authority. It is a matter of machinery that ought to be provided somewhere or other. Coming to the first amendment standing in my name, I beg to move to add a new sub-section before Sub-section 6 as follows:—"This section shall not apply to any decree made in respect of an injury to which this part of this Act applies, where such decree has been varied or affirmed upon an appeal, at the hearing of which the local authority or authorities concerned were represented."
In some previous remarks the President said, what I did not know before, that in certain cases the Local Authority appeared and made only a nominal defence. I had not known that. I thought that where they appeared they fought the case, and therefore I think it would be only proper to add to this amendment the words where "representatives appear and make a bona fide appearance.” The object of this amendment is, not to increase the burden on the State at all. It seems to me that where a case was honestly fought by the people interested in opposing it, that it is very improbable, where there was a hearing before a County Court Judge or an appeal at which the Local Authority concerned did, bona fide, contest the case, that any very exorbitant decree could have been given. I could understand if you said that all the Judges were corrupt or incompetent, but that does not lie in the mouths of Ministers who have continued these Judges in office, and in fact have appealed to them for decrees against Mr. de Valera, Mr. Stephen O'Mara, and trustees of one sort or another, and to whom they go for the ordinary necessary orders for carrying on the affairs of State, the recovery of Income Tax, and one thing and another. Therefore, it does not seem to me possible to make the charge that these decrees ought to be abolished because the Judges were corrupt or incompetent. We must assume, I think, that the decrees were at any rate comparatively honest. If so, and the decrees were given after a contested battle between the parties interested, it does seem to me to be plunging the country, the applicants and the State, into unnecessary litigation which must be paid for. I know, as well as anyone else, that the dearest luxury any man can enjoy in the world is the luxury of litigation. This Bill provides that not only the State, but the Local Authorities, and, of course, the applicants, must be represented upon all these re-hearings, or ought to be represented at them, and the costs will be included in whatever award is made, and will have to be provided for. It seems to me that wherever it is possible we should close the door to a re-agitation of a matter that has already, as I assume in my amendment, been fought twice over and has then arrived at a final conclusion. There is one other matter that I think we should consider. The credit of a country rests, to a great extent, upon the confidence that other people have in the way the law is administered in that country, and in the way that country fulfils its obligations. It seems to me it would be a grave shock to the credit of this country if decrees, arrived at by the Courts after two hearings, are torn up, and you have to put the whole matter into the melting pot of litigation over again. Retrospective legislation, which comes in under another part of this Bill, always causes a shock to the credit of any country. The other day when one of the Federated Colonies in the Commonwealth of Australia, I forget which it was, proceeded to repeal statutes dealing with certain land settlements, what a tremendous outcry there was against that action. I believe they were unable to borrow the money in London, the natural place for them to go to, because the financial people, or capitalists there, who finance these International loans had so far lost confidence in them by reason of their land legislation that they could not get the money in London, and were compelled to go to America and pay a higher rate of interest by borrowing in a foreign country than they would in the ordinary course, or that their sister Colonies would be liable to pay in the London markets. I have no particular interest, and I know nothing at all of any of these decrees, but I am anxious that this Bill should, as far as possible, avoid doing injury to the country. I do not think the amounts saved by re-opening the decrees of the class to which this amendment refers will be so great as to off-set the immense loss in litigation and cost and of the undoubted damage the re-opening of decrees of this particular kind would do to the credit of the country and the administration of the law. I beg to move the amendment, with the addition after the word “represented”“and bona fide opposed the decree.”
I am advised that I could not accept the amendment. A discretion is given to the Minister for Finance in opening up and taking exception to any decree that has been given. One of the disabilities which all persons, with the exception of those who have got decrees, would suffer by reason of their not having looked for decrees, and put the machinery of the Courts into operation, is that they would have secured compensation for consequential loss. And compensation for consequential loss is excluded. It is one of the main features of this Bill, and it would mean in effect that certain people who operated against what was the general popular opinion for a period of one or two years, or possibly three years, and who said "We will take advantage of this law; even though the vast majority of the people say it is bad law, we will take advantage of it," would get their pound of flesh. I think the number of cases that are in the mind of Deputy Fitzgibbon as affected by this is relatively small. I do not know that there are any. The only place I know where there is a likelihood of any such cases having been heard is in the City of Dublin. Now, in the City of Dublin it is possible that there may have been some defence by a local authority. We will take it that there is a claim for property damaged, say, in Rathmines or Pembroke, and in the ordinary way I think that counsel for the City of Dublin would appear; counsel for Rathmines, possibly for Pembroke, and probably for the County Council. If the Rathmines Council only appeared and fought the case it is quite possible that their counsel would succeed in having an award given which would apply, say, to the City of Dublin and to the County Council of Dublin.
That is in my amendment, and must be read into this.
I know that, but his interest would be at that time to keep the award away from Rathmines, and his interest would not be in the reduction of the award. And, although he might have contested in every possible way the amount, it is more than possible that he would have paid more attention to the fact that Rathmines or Pembroke should be excluded from the decree than to the actual sum awarded. I do not know that I could accept it, in view of the fact that a person having secured a decree in this case must necessarily have some compensation for consequential loss, and that a small section, perhaps a couple or, at the most, perhaps not even a half-dozen would get that advantage which is now denied to the vast majority. It would also, I am told, prevent the reinstatement condition. I think it is generally agreed that there ought to be a reinstatement provision. Should there be costs, it is a matter for the State, and it would be a matter for the consideration of the Minister for Finance whether he would be justified in asking for the re-hearing of these cases, in which there would be considerable costs, if the result of the re-hearing simply meant that only a small sum would be excluded from the decree for consequential loss, and that it would entail a heavier expense by reason of the additional costs than the amount of the consequential loss. I shall also say that the Shaw Commission, as it is called, is really reviving cases that were the subject of decrees in Court; and it is subscribed to by the British Government, which has a pretty big tradition behind it of settled law and order and so on.
I will answer very shortly the two arguments of the President. He refers to the Shaw Commission. The Shaw Commission does not deal with cases of the kind which I have referred to at all. Because the Shaw Commission only deals with undefended cases. He also instanced the case of the city of Dublin. My amendment was carefully framed to meet the cases that I knew had existed in the city of Dublin. It was only in the city of Dublin that I came professionally in contact with those criminal injury cases at all. And I came across very few of them, and my recollection is that the city itself—the Corporation—was not represented upon any of these hearings. One of two townships where they were concerned did appear, and I carefully framed this amendment so that the decrees should not be confirmed unless the local authority or local authorities concerned, which means all the local authorities concerned, were represented. And, therefore, where a person brought a claim in the city of Dublin, and a township was represented, but the city was not, this would count as an undefended decree, and would not be affected by the amendment I have moved. I have answered the two main arguments of the President. The other was a question of consequential loss. Well, speaking from memory, my recollection is that until very late, indeed, in the day, the Courts had held that consequential damage could not be recovered and I think that the right to recover consequential damage was only affirmed by the Supreme Court of Appeal as it then was, the body which existed for about a month, and no longer, some time in the month of October or November, just before the Free State came into existence. And I think that until then the general opinion and the general trend of decisions where cases had come up for decision was that consequential damage could not have been given. Therefore, there could have been very few cases—defended cases—indeed, covered by the amendment that I have put on the paper in which consequential damage had been given, and the local authorities concerned were represented in opposing the decree.
I am very sorry that the President has not seen his way to accept this particular amendment; because it was the absence of such saving clauses as that which added enormously to the shock produced in business circles by some clauses in this Bill, and particularly this Clause. It is well-known that the Banks had advanced money to people who had got decrees on the faith that those decrees would eventually be paid. And what I suppose startled people more than anything else was the tangible evidence that the Government thought it right to start its career with very definite retrospective legislation. I put it to the President that this matter wants further consideration from another point of view; and that is that he may find himself in very serious difficulties on the Constitutional point that our Constitution prohibits retrospective legislation. I sympathise with his desire to revise in this Bill unjust and excessive decrees. I sympathise absolutely with that. But there was another way of doing it. It was not necessary to do it in the way proposed here. Here the Minister is to have absolutely unlimited right to re-open. I suggest that what might have been done first of all, instead of providing for any re-opening, was to extend the time for appeal and in the comparatively small number of cases where a revision is deemed necessary to provide that a superior judge should hear these appeals instead of sending the cases back to the same judge; and further, to provide that the Minister should only call for that revision on certain specified grounds. If the Minister had done that—and that is one of the things which I venture to think we should have secured had we been able to talk this matter over in a Select Committee—you would produce a very different impression on the public mind. You would be showing that you did not intend to inflict injustice and you would be limiting your right of revision to cases where it was clearly shown to the Minister that grossly excessive damages had been granted, at all events to a series of cases of which you had tabulated a description in your Bill. If you do that you get away from the Constitutional difficulty and instead of re-opening the cases already decided you adopt the very much more satisfactory principle of granting an appeal on certain very limited and definite issues to a higher tribunal. I hope it may not be yet too late for the President to consider that suggestion before this Bill finally goes through, because the thing as drawn is certainly very objectionable.
I am very sorry that the Minister for Finance should not have accepted the amendment put forward by Deputy Fitzgibbon, and one can only hope that it is still possible that his decision will be open to review for very grave reasons indeed. I think it would help, as Deputy Gavan Duffy has said, to clear a very manifest trouble that is awaiting the whole of this Section under the Constitution. As it stands, even if the amendment proposed by Deputy Fitzgibbon had been accepted I venture to say it may yet prove, and I believe it will yet prove, that the whole of this Section is ultra vires under the Constitution. Article 66 of the Constitution states that “the decision of the Supreme Court shall in all cases be final and conclusive, and shall not be reviewed, or capable of being reviewed, by any other Court, tribunal, or authority whatsoever.” That, it will be said, is the Supreme Court of the Irish Free State. That is perfectly clear. But under the transitory provisions it is also stated that until Courts have been established for the Irish Free State in accordance with this Constitution, the supreme Court of Judicature, the County Courts, etc., as at present existing shall for the time being continue to exercise the same jurisdiction as heretofore. There is a proviso at the end of Article 75 which refers back to the earlier Article of the Constitution to which I have referred, and specifically states “Provided that the provisions of Article 66 of this Constitution as to the decisions of the Supreme Court established under this Constitution shall apply to decisions of the Court of Appeal continued by this Article.” That means that any decision by the Court of Appeal that has hitherto existed, and still continues to exist until the Judiciary Act shall have been passed, is a decision that is not capable of future review by any Court, tribunal or authority whatsoever, even the authority and the tribunal of this Dáil Eireann. Deputy Fitzgibbon's amendment is one that helps a very great deal to meet that point, but I venture to say, seeing that it has been intimated, that it will be rejected by the Ministry that it may yet prove that it is necessary, because the amendment reads: “where such decree has been varied or affirmed upon an appeal.” I suggest that under the Constitution if any decree has been varied or affirmed on appeal that that decision under the Constitution is a binding decision, and cannot be upset by any legislation that we now enact, and I hope that will subsequently be proved with regard to the Section in the Courts of law.
One cannot decide on this particular matter as an abstract problem, and one cannot judge of its merits or demerits apart from concrete circumstances. This Section of the Bill deals with injuries committed after the eleventh day of July, 1921. The eleventh of July, 1921, was the date of the Truce; the 6th December, 1921, was the date of the signing of the Treaty. As between the date of the Truce and the date of the signing of the Treaty you had an interesting and highly anomalous state of affairs in this country. You had functioning within the country two sets of Courts, some of the Courts receiving the allegiance and obedience of a section of the community and repudiated by another section. Then there was another set of Courts similarly situated. That state of affairs lasted from July to December. It will be admitted that for several months after December order had not been produced out of chaos. During these months between July and December we were in a state of suspended hostility with regard to the British and their institutions within the country. We had set up in this country a fighting machine which served its purpose very well as a fighting machine, and which we called a Republic. Pending a definite settlement with the British and pending the signing of the Treaty by our plenipotentiaries we were not abandoning that particular fighting machine, and we would have been very foolish to do so. Consequently throughout that period you had people objecting, and objecting very definitely, to going into British Courts in any capacity whatsoever, whether in the capacity of plaintiff or as defendant, or as prisoner or as witness. Decrees given by the Courts during that period may deserve examination, may deserve very close inspection, now when a more ordered set of conditions prevail. It may be that important evidence in a particular case was withheld because of the objection of a particular witness to appear. The Ministry of Finance will, no doubt, have rather detailed information with regard to each case. It should be open to that Ministry at its discretion, and for cause given, to apply for the re-opening of a particular case, when one considers the circumstances that existed, not merely from the 11th July to the 6th December, but for many months after the 6th December—highly anomalous conditions, not orderly conditions. It may be a sound principle for general application that retrospective legislation is bad. We hold no particular brief for retrospective legislation in the normal, but a country emerging from a revolutionary period and emerging from a period when there was a very distinct clash of jurisdiction and a clash of authorities is not normal, and when you had side by side in this country for quite a long period two sets of Courts. We all remember last year that horrible period of dual jurisdiction when people did not know where they stood as between a ukase of one Court and a ukase of another, and when the Dáil met, and shortly after the Provisional Government was set up, we took steps to hew our way out of that debris and out of that condition of disorder, but it took time. It is the decrees given during that period that the Minister for Finance asks to have re-examined, not decrees given in normal orderly conditions. That is the case for it. I do not propose to deal with Deputy Figgis's highly Constitutional argument. Deputy Figgis, I take it, disapproves of retrospective legislation. Yet he suggests that the Constitution which we passed here rules back to the 11th July, 1921.
- Darghal Figes.
- Seoirse Ghabháin Ui Dhubhthaigh.
- Earnán Altún.
- Sir Séamus Craig, Ridire, M.D.
- Gearóid Mac Giobúin, K.C.
- Liam Thrift.
- Liam Mag Aonghusa.
- Risteárd Mac Liam.
- Liam T. Mac Cosgair.
- Donchadh Ó Guaire.
- Uáitéar Mac Cumhaill.
- Seán Ó Maolruaidh.
- Seán Ó Duinnin.
- Mícheál Ó hAonghusa.
- Domhnall Ó Mocháin.
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Séamus Breathnach.
- Pádraig Mag Ualghairg.
- Peadar Mac a' Bháird.
- Tomás Mac Eoin.
- Seán Ó Ruanaidh.
- Ailfrid Ó Broin.
- Domhnall Mac Cárthaigh.
- Maolmhuire Mac Eochadha.
- Liam Ó Briain.
- Eoin Mac Néill.
- Tomás Ó Conaill.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Criostóir Ó Broin.
- Aodh Ó Cúlacháin.
- Liam Ó Daimhín.
- Caoimhghin Ó hUigín.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Aindriú Ó Láimhín.
- Seán Ó Laidhin.
- Próinsias Mag Aonghusa.
- Cathal Ó Seanáin.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Seán Buitléir.
- Domhnall Ó Broin.
- Risteárd Mac Fheorais.
- Mícheál Ó Dubhghaill.
- Domhnall Ó Ceallacháin.
I move Amendment 3, which reads as follows:—
"To add a new Sub-section before Sub-section (6) as follows:—
"Any assignment, mortgage or charge which, on the 6th day of February, 1923, affected the compensation awarded by a decree, made in respect of an injury to which this part of this Act applies, shall, notwithstanding anything contained in this Act, continue to be in full force and effect against, and shall affect any compensation which may be awarded on the re-hearing of an application in respect of the same injury, under the provisions of this Act, in the same manner and to the same extent in all respects as such assignment, mortgage or charge affected the compensation awarded by the said decree."
This amendment is one that appears to me to be one of elementary justice. From the earliest times the best recognised security that any borrower could offer was a judgment, and before mortgages were invented authority used to be given by power of attorney. It was marked up, registered and re-registered from year to year, and assigned and treated as one of the most valuable securities for the advancement of money. Many decrees obtained under the Criminal Injuries Acts have unquestionably been assigned, mortgaged or charged for value. Those are all being swept away. New decrees are about to be given by new tribunals for in some cases greater and in some cases lesser sums than those secured by the old decrees. It is quite true that they are to be charged over again, but somebody or other who has got to get a good charge for money honestly advanced upon a decree which was lawful at the time he gave the money may find himself completely cut out by the applicant coming in and getting a new decree from the new tribunal, and then proceeding to charge it in fraud to the man who had already advanced him money on the security of the decree now going to be abolished. Unless this amendment is passed this Act opens the door to enormous fraud by people who have already borrowed money on the security of decrees they have got, and who will be able, unless this amendment is passed, to borrow money again from other people on the security of the new decrees, and defraud those who advanced the money relying on the value of judgments of the Irish Courts. If you are to cover your courts and judgments and the whole administration of your law with contempt and bring them into discredit throughout the whole world, you will reject this amendment.
I would like to say the principle involved in the amendment is acceptable, and will be examined, and it may, on consideration, be carried even further than now proposed. If the Deputy will agree to that it will be considered.
I accept the assurance of the President. The only thing I seek is that you give people who advanced money on the security of a judgment of your Courts at least the advantage that they already hold in respect of any new decree given in substitution for an old one.
Amendment withdrawn, and permission will be given for an amendment embodying this principle on the Report Stage.
I move the following amendment:—"To add a new sub-section before Sub-section (6): `Where a decree has already been made in respect of an injury to which this part of this Act applies, and such decree has been varied or affirmed upon an appeal, at the hearing whereof the Local Authority or Authorities concerned were represented, and the sum awarded by such decree has been mortgaged, charged or assigned, bona fide and for value, the amount awarded upon any re-hearing under this section shall not be less than the sum advanced or paid upon the security of the original decree.' ” This amendment would be unnecessary if the first amendment I moved had been adopted. The principle of this amendment is that where a decree has been made, and has been honestly fought, that is a decree the Dáil has decided shall be, or may be, re-opened. But where such a decree has been fought, and where it has been assigned or mortgaged for value, the amount awarded in respect of the new decree shall not be less than the amount advanced on the security of the old one. The main difference in my first amendment would leave the decree standing with the full amount, and the second amendment will only leave it to stand for the amount that has been honestly advanced, and bona fide paid on the security of the decree as it stands. As the President said, nobody thought the decrees were worth 2d. when they were given. A great many people probably did not think they were worth twopence, but some people who had experience undoubtedly thought they were worth something, and advanced money on the security of these decrees. I do not suppose that the advance in any case would be anything like the amount of the decree, as no mortgagor or lender ever lends up to the full value of the property. Undoubtedly many of these decrees were used by people who had got them to obtain the means of living. The decrees were not levied, as they could not be levied, and in some cases they were all the unfortunate applicant had, and he assigned these decrees for very much less than the nominal face values of the amounts, in order to obtain a means of living for the time being while he was looking for a home elsewhere. I suggest that where the money was so obtained by the applicant on the security of these decrees, the decrees should stand for the amount for which they were sold, assigned, or charged.
I think this Sub-section is a little different from the previous one. It can only be accepted on the principle that the advance was not more than the amount awarded on appeal, and advanced before the introduction of the Bill, and of which notice was given to the Local Authorities before the 6th February, 1923. On that understanding I would undertake to bring it up on the Report Stage.
A doubt arises on the use of the word "original" in the amendment. That was not intended to apply to a decree which had been reduced upon appeal. The word "original" there was intended to apply to the decree that was set aside, not on the first hearing, but to the decree as it finally issued from whatever the final court was. If the wording were to be "upon the security of the abandoned or cancelled decree," or some words to that effect, I am quite convinced it would meet the point.
The Deputy will understand the reason why I put in the other provision. It would be open to anyone, if it were known that we were doing this, to get money advanced now, and to stake a claim, as it were, which would not be in the spirit of this amendment. In other words, a person seeing that we were proposing to introduce this, would now borrow in excess of the amount that would be granted in the ordinary way, and would stake a claim in consequence. That is why I put in the other provision.
Suppose we say: "As before the 1st of January, 1923"?
This amendment was for the purpose of obviating fraud, and I have no desire that it should in its formation be capable of being used as an instrument of fraud. If such words were introduced as "As before the 1st of January, 1923," or "before the passing or introduction of this Act," the point might be met.
The Deputy will, I am sure, be prepared to accept an assurance that this will be looked after?
I am quite prepared to accept the President's assurance.
I am opposed to anything that will bind a court as to the extent of the award that is to be made in any case. I would not think it advisable that any judicial authority should be bound as to the extent or the amount of the award. I think the amendment, although accepted conditionally by the Government, has a tendency in any case to say that they can go this far and no further.
Leave is asked to withdraw the amendment so as to give the Government an opportunity of introducing it in a new form.
The moving of this section includes the heading: "Part II. Injuries committed after the 11th day of July, 1921."
I suggest that the heading is either not part of the Section, or that it should stand over. It is possible an amendment may be introduced. I do not know, but when you come to the end of Part II., where a date is fixed, it would still be open to us to alter the date specified, the 11th of July. I do not think a cross-heading of this description, or a marginal reference, has any bearing on the interpretation of the Act.
I am now going to put Section II.
Are you omitting, then, the heading?
I submit, with all respect, that the Section, as moved, becomes unintelligible. The heading is a necessary part, in my opinion, because the words used are "claims made under this part of the Act."
The Deputy is confusing the parts with the sections of the Act. The part is Part II., and at the end of page 12 a definition is given of the period to which this part of the Bill applies.
I know; but if Deputy Fitzgibbon will go back he will see that what we have already passed by agreement, likewise, has a heading which is distinctive of it and which characterises it.
The Section itself gives the date to which it applies.
I rather fancy the Legal Adviser of the Government will agree with me that in a Statute of this decription cross-headings of this kind are not a part of the Act, and are not used in any interpretation of it. Part I. is only one Section, and the Section itself says it applies to injuries between the 21st of January and the 11th of July.
Will you leave in Part II.?
Yes; we can leave in Part II. on account of Section 15.
Would it not be wiser for the purpose of reference to speak of Section 1 of Part II.? That would make it easier for reference at a later time, instead of speaking of Section II. of the Act.
I am not acquainted with any Statute in which that system has been adopted. It has not been adopted in the Statutes that we have already passed ourselves, which we divided into more parts than one. The Local Government Act, which is being superseded to a greater extent by this Act, is divided into some seven parts. The sections run consecutively from one to the end.
We have only just found out the folly of it.
Perhaps you had better continue the folly for the present.
Subject, of course, to the promised amendments.
A motion of that kind could not be put.
I have a particular reason for making the statement. On a recent occasion I did not press that, with the result that all recollection of what happened during the course of a debate was disclaimed by the Minister in charge of the measure, and all the value of the discussion on the original occasion was lost.
It would obviously be impossible to put a motion in such vague terms as are suggested.
I move Section 3, which reads as follows:—"The time for lodging applications for compensation under the Criminal Injuries Acts in respect of any injury to which this Part of this Act applies is hereby extended for three months after the passing of this Act."
That section deals with the extension of time for lodging applications for compensation under the Criminal Injuries Acts. The provisions, as they stand at present, specify a short period, a week or a fortnight, and as very much more damage is being done, and a great many delays will be occasioned by them from the notice of the passing of this Act and so on, it would be very advisable to extend the time. We are proposing a period of three months.
Three months after the passing of this Act?
Yes; our proposal is that it be extended for three months.
I beg to move Section 4:—
(1) Every person who has before the passing of this Act applied or who after the passing of this Act applies under the Criminal Injuries Acts for compensation in respect of an injury to which this part of this Act applies shall serve such notices in such form and on such persons as the Minister for Finance shall prescribe.
(2) Every notice served in compliance with any order or regulation made by the Minister for Finance under the resolutions passed by the Dáil on the 1st day of November, 1922, shall be deemed to have been served in compliance with this section.
(3) If on the hearing of any application under the Criminal Injuries Acts for compensation in respect of an injury to which this part of this Act applies the Judge is not satisfied that the provisions of this section have been complied with he shall adjourn the hearing of the application until such provisions have been complied with, and if such provisions are not complied with within three months after the passing of this Act he shall dismiss the application on such terms as to costs as he shall think fit.
(4) The notices to be served under this section shall be in addition to and not in substitution for the notices prescribed by the Criminal Injuries Acts.
I beg to move in Sub-section (2) to delete the words "the Dáil," and substitute the words "Dáil Eireann." Nil ann ach na focla "Dáil Eireann" do chur isteach i n-ionad "An Dáil." There is nothing in this amendment except a verbal change.
I accept the amendment, and the definite article is to be deleted.
I move in Sub-section (3) to delete the words "three months after the passing of this Act," and substitute the words "one month after the date of the adjournment." The object of this amendment is to ensure that the same period of time will elapse after a case has been turned down for further information. As drafted the Clause would apply a period of three months to all cases, irrespective of the time when those cases were considered, but it seems more fair to ensure that each case will have one month before being finally wiped off.
That is acceptable.
We had better put in "adjournment of the hearing."
A case might occur such as the Deputy suggests. With such a large number of cases to be heard it is possible that a particular case in respect of which necessary notice had not been given or some provision not complied with, more than three months would have elapsed, and then the case would be out.
I move Section 5:—
"The Minister for Finance shall be entitled to appear and be heard by solicitor with or without counsel, to examine and cross-examine witnesses and tender evidence at and generally to take part in the hearing of every application under the Criminal Injuries Acts for compensation in respect of an injury to which this part of this Act applies and every proceeding by way of appeal or case stated arising out of or following on any such application."
I would like to ask the Minister to consider the possibility of amending this Section. As drawn up it gives the Minister the right to appear and be heard by a solicitor and counsel, but it also involves the possibility of a large piling up of costs. Take a case on the verge of the City of Dublin where you might have a good number of local bodies represented as well as the Minister. I do not think that under the provisions now proposed, the local bodies will, in many cases, have very much interest and I should like to see it provided that they are not to be represented except there be special cause, and I should also like to see provided that in places where the Minister, to get at the facts, wants the help of the Local Authorities, instead of being directly represented by a solicitor and counsel he himself should be able to instruct the Local Authority to act for him. In most cases that will arise under this part of the Act, there will really be no object in having the Local Authority specially represented.
There might be.
In a few cases there might be, but as a rule there will not be, and I should like that provision should be made so that a normal course for the Minister would be to instruct the Council to have their solicitor to represent him in order not to multiply or to duplicate the legal people who will be appearing in those cases. The costs, remember, are considerable and there are cases which will be re-opened where the costs have already been accruing. I suggest it will be possible to re-draft this Clause to have the cost cut down so as not to have the Councils represented except in those special cases where it is necessary for them to be represented and in other cases to have the local body to represent the Minister. I would ask him to consider it.
It has already been under consideration. Ordinarily we thought it might have been possible to get the Local Authority to defend those cases, and make some contribution to us for this enormous legal expense, but it would be necessary, I think, to permit Local Authorities to come in where reinstatement or anything of that sort may arise to make a case for us. Suppose a Local Authority has a valuation of £100,000. A number of premises that have been destroyed may possibly reduce that by £1,000. It would be to their interest to see that some property was reconstructed in their area to make up for that £1,000. The danger arises in this way, that they might make it a point to get considerable sums were they even in excess of equitable amounts in order to ensure that their valuations would be at least as great, if not greater, after re-instatement than they were before. And generally we come to the conclusion that the sum of money we might save by reason of the employment of those people might easily be lost otherwise. Of course, at present as they are not associated with their proportion of the cost of compensation they would not have any interest in keeping down the amounts. But it would be to their interests to appear in connection with re-instatement. In that case if they appear there, they appear to protect some of the rights of their own districts, and they would have to bear their own costs in these cases. It would not put any extra expense on us, and it would relieve us to this extent that we would be saved a great deal of the trouble of getting information with regard to re-instatement. To that extent our expense would be limited, but I do not see how it is possible to make use of the local authorities, or even to get them to look at this from our point of view—that is, the point of view of the State.
So far as the representation of the local authorities at the hearing goes, is it not desirable in view of the President's statement that you should put in your Bill provision for paying their costs in certain cases. You should, in other words, limit the cases where they are entitled to appear otherwise than at their own expense. As the thing stands they might come in, and it may be secure payment of the costs they incurred, even though there may not be good reason for their appearing at all. It seems to me to be too vague, and the cases where they ought to appear should be clearly specified.
I will consider it, but I do not see that we are able to make any great improvement in it.
I think the number of cases in which the authorities would be likely to appear would be infinitesimal. It might well happen that there may not be any appearance.
(At this stage Mr. Fitzgibbon took the Chair).
I move Clause 6:—
"The right to compensation under the Criminal Injuries Acts shall, as respects any injury to which this Part of this Act applies, be limited to compensation for the actual damage done to the property injured, and shall not extend to any compensation for any loss consequential on such actual damage, and in particular shall not extend to compensation for the loss of the use of the property injured or for the loss of mere pleasure or amenity."
Clause 6 that has been moved is one of the most contentious clauses of the entire Bill. It is the one that deals with consequential damages. I think there are few matters that have aroused more criticism in respect of this Bill than this very Clause, and because of that very reason I will oppose this Clause, for I believe that if the Clause were cut out that it would be very much more advantageous to the Bill as a whole, because the whole question of consequential loss raises a matter of the very first importance. By restricting the compensation in respect of consequential losses, while allowing such compensation in respect of actual loss of business, it seems to me that in this Bill the State is putting a certain premium on idleness and is making a certain disadvantageous distinction against industry and production. Take two buildings, one of the buildings belongs to someone who lives in England, let us say; that building is being put to no practical use for the benefit of this country, the earnings such as the owner may make are spent outside this country, and he may only live in that building during his times of leisure and for purposes of luxury. If that building is burned that person gets complete compensation for its burning. Turning now to another building, which I set off in contrast to the first, a small factory which has been built, not to be lived in, but in order that it should be put to productive use for the benefit of the country as a whole, the burning of that building—that shop, it may be, to extend the word "production' in its widest significance—means not merely that the person who put it up has lost the bricks and mortar and timber and whatever else went to its composition, but he loses all the production that that building meant to him, and pending the hearing of that person's case he has lost and lost heavily, but his loss has not been direct and actual, as in the first case I have put. His loss has been a consequential loss, and consequently you say, as between these two persons, one has a building that is non-productive and the second has a building definitely productive. You say to the first person, "you are unproductive, you have never helped in the productive life of this country, you life in so far as this building is concerned is a matter of waste. Nevertheless, if the building be destroyed you shall be compensated in full." But to the other person we say in this Bill, "this building you have put up is a definitely productive concern, so long as that building continued certain works continued in it which enriched this country, but we penalise you as against the first person, your loss is mainly a consequential loss, and the loss of the building is a small part of the loss you have incurred. We will only compensate you for that small loss, and we will cut away all the consequential loss that would accrue to you because of the destruction of this building and the machinery of this building, that was less valuable in itself than valuable for what it produced." Now, I anticipate the argument, which is a very strong argument, that the Minister for Finance has already brought up against such a case as I have put. He has said, and I must acknowledge that he is right in saying, that there are no funds to pay all the losses. That is admitted. There must be a certain percentage of the entire possible compensation that under other circumstances and in more fortunate times we might be willing to recompense, but that now, conditions being as they are, we must forego. That is a strong argument, and it has been put very strongly in the Dáil by the Minister. I imagine there is no member of the Dáil who is not in entire agreement with it, but I put before him this thought that that argument of his does not help him with regard to this particular Clause. I will endeavour briefly to show why. I have taken two persons, one person whose building is an unproductive building, and a second person who has a productive building. The person who owns the first gets full compensation; the person who owns the second gets a very small fraction of the compensation to which he should in equity be entitled. Now, surely one would think that the right method would be to make some kind of computation, which would have by necessity to be very rough, and add the two together, and having got the total for the two, to say the total for the two is such and such a figure, but the State cannot afford to pay more than 50 per cent. of that; but being able to pay 50 per cent. of the total it will pay 50 per cent. in each case, so that the man whose building is non-productive does not get the whole of his compensation, just as the other man whose building is productive fails to get the whole of his compensation. Each person would be treated on a perfect parity; whereas it is perfectly clear under the provisions of this Bill persons are not treated on any parity whatever. One person is put in a very strong position of advantage as against the other and we have chosen to put the very person in a position of advantage whose existence in this country is no positive gain to this country. I will oppose this Section for that reason. I am full well aware, as I have said, of the argument that the Minister has put forward, that this country cannot afford to pay all the heads of compensation at the full 100 per cent. I think a very strong case could be made out against that, but it is not the intention, I think, to do so. I admit we cannot pay 100 per cent.; we can pay, say, only 50 per cent. or 40 per cent. or 30 per cent., but whatever that percentage be, let it be paid to each and every person alike and not pay one man 100 per cent. and pay another man 5 per cent. Therefore, you should make some balance between the two that the country can pay and strike a balance in that way between the deserving case and the undeserving case. Because it is inequitable and would be bad, I think this Clause has been rightly denounced in every part of the country and will earn for this Bill, I believe, more opprobrium than any other separate item of it with the possible exception of the personal injuries.
Well, I must say that a bad case has been very well put, and I suppose as much as could have been said about the thing has been said and written. I would like to know from such a very able Constitutionalist and ——
Prospector of Constitutions, or whatever the term may be —the man who knows so much about the Constitutions of other countries—what France paid to people who had losses in the late war for consequential losses.
It was not provided for in the French Constitution.
It was not provided for in their Constitution. And we, who are by no means as wealthy as France, must give a headline to France for the damage that has been occasioned. I would be glad if Deputies, and the Press generally, would remember that this is a poor country, and that compensation claims for consequential losses cannot and will not be paid. We surely have had a sufficient indication of what a false thing a paper currency is. Do we want to add to all our other ills that horrible load of paper under which other countries are groaning? I never in my life heard anything like the suggestion that every sort of claim should be bulked, and that 50 per cent., or 40 per cent., or 30 per cent. should be paid. As to how this 50 or 40 or 30 per cent. is to be paid we are given no indication. This Bill seeks to start out on certain definite lines to place people in the same position as they were in on the 11th of July, 1921; to give them an opportunity of starting business again, starting them as such in that way. The case that has been made for consequential losses, in my opinion, by reason of the exaggerations that have been introduced into it, is a false case. We never heard in the Ministry of Finance that there was as much money made in this country until claims for consequential losses came to be considered. Then we discovered that the sums of money that we should have been earning on Income Tax were beyond the dreams of avarice, that we could almost afford to pay the costs of a Bill like this every year instead of once in a generation, and I wish that those who make a study of the case for consequential losses would also make a study of how to bring home to the people who make such claims, honest conceptions of their duties to the State.
I would like to remind the Dáil that I think there is an understanding that we should rise at 6 o'clock.
And as this is likely to give rise to a good deal of controversy it is unlikely that we would be able to finish to-day within a reasonable time and go to a division. Therefore I suggest that we adjourn now.
I move the adjournment until to-morrow at 3 o'clock.
I think Deputy Gavan Duffy had risen to speak. He had caught my eye just before I intervened, and, therefore, he is in possession when the Dáil resumes to-morrow, or the next time this Bill comes before it.