The Dáil resumed the Committee Stage of the Criminal and Malicious Injuries (Amendment) Bill.

A motion was made when the Committee was adjourned on the last day that Section 6 stand part of the Bill.


"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."

I have been looking in vain for any principle upon which you can distinguish the damages which, the Minister says, should be paid, from the damages which he says must not be paid. There is no principle of law, and no principle of morality, on which you can distinguish these two sorts of damages, and if the Minister is unable to give to the Dáil a logical distinction it is quite obvious that the distinction which he seeks to make is untenable. I am entirely with him in doing everything possible to exclude fancy damages and bogus claims, but surely we could, in dealing with this matter, evolve an intelligible principle of distinction between claims that are to be paid and claims that ought not to be paid. I suggest that the proper principle is this: That all damage should be paid which is the direct outcome of the aggression. I do not know what consequential damage means. Least of all do I know what it means in this Bill, but I do know that damages which are the direct outcome of aggression will very often include what the Minister calls consequential damages. I am quite certain that the Judges will have the utmost difficulty in discovering where the dividing line is precisely, because there is no logical dividing line. I suggest that the correct dividing line on which to base a section of this sort is the dividing line between that which is the direct outcome, and that which is not the direct outcome of aggression, and if the direct outcome includes some consequential damage then that consequential damage is a proper thing to pay.

Let me put to the Minister a hypothetical case. Supposing some person, at low water, takes a piece of timber out of a ship's side with a view to sending her to the bottom when the water rises, and supposing that that result is achieved a few hours later. Under this Bill the shipowner would get compensation for the little bit of timber, but the rest would be consequential damage. Is that what the Minister of Finance is proposing to this Dáil? If this Bill is interpreted according to the words he used, the case I have given must be decided against the shipowner, who will get compensation only for his little bit of timber. Take, again, a case, which is in everybody's mind, of a newspaper whose offices were wrecked in the city of Dublin. That was a case fought out for days, first of all before the Recorder, and subsequently on appeal. A great deal of money was spent on the contest. All proper parties were represented, and the matter was very thoroughly threshed out. In that case, I think, the award was £43,000, and it was substantially unaltered on appeal. Of that £43,000, £20,000, or thereabouts, was what the Minister calls consequential damage. Does the Dáil realise that the Minister proposes to assume the right to re-open that transaction, which has been pleaded for days and days in two Courts of law, and to make that newspaper disgorge some 40 per cent. of the damages properly awarded to it? A fine piece of retrospective legislation based, as I say, on no principle of distinction that any human being can discover! Can anybody stand up and defend that sort of thing? Unless the newspaper in question has mortgaged or assigned the award which it got, in which case Deputy Fitzgibbon's amendment might apply to it, that award can be re-opened, and, so much of it as the Minister calls consequential damage, can be not merely annulled, but recovered from the unfortunate newspaper several months after the event. Let me put one case more to the Minister. I want to try to find out on what basis this curious distinction is made. I think the words "consequential damage" are a misnomer to begin with, because all damage is consequential, and the words, as used in this Bill, will only add to the confusion. Take the case of a man who has contracted to supply a large quantity of merchandise. As he is about to deliver the goods, his place is destroyed. Assume that the merchandise is of a sort not easily procurable, and that the prospective buyer has to go to considerable trouble and expense to buy elsewhere; consequently he brings his action for damages, and recovers heavy damages in respect of the breach of contract—because, observe, in many of these cases the burning of the goods will not relieve the man who undertook to sell, and the prospective buyer recovers the difference between what he has to pay and what he would have paid had there been no burning. The unfortunate man who intended to sell is told: "You may get the original cost of the goods, but the damages you are compelled to pay, through no fault of your own, by a Court of Law, are only consequential, and you have to pay this out of your own pocket or go bankrupt." I do ask the Minister to evolve some logical distinction between the damages which he is going to pay and the damages which he refuses to pay. I ask the Dáil to refuse to accept as logical a distinction which has no foundation and no reason whatsoever.

I beg to move the amendment in my name:—"To delete the words `damage done to the property injured,' and substitute for them the words `actual loss incurred'; and to add at the end of the Section, `but shall include loss of wages, salary or other remuneration in respect of services rendered in the actual conduct of any business carried on in the property injured.'" The question that has arisen on this section and the discussion that has so far ranged around it implies compensation for prospective profits, loss of business, and so on. I realise quite well that the question of consequential damage is a very difficult one, and it is not easy to draw any line. But I am submitting that if there is any question of consequential damage to be considered at all, the direct loss of livelihood occasioned by the damage to property is the first consequential loss that should be compensated for; and in this as in every other case I distinguish between loss of livelihood which merely means loss of interest, or profit on capital invested, and loss of livelihood occasioned by the deprivation of the opportunity of giving service, either in the management or direction of a business or in the actual operation of the business. I agree with Deputy Gavan Duffy in saying it is not easy to understand the principle which is animating the mind of the Government with regard to compensation. I, on the last occasion, tried to suggest a principle. I am inclined to hope still, whether it is contemplated or not, that that principle will be the one which will emerge —that is to say, that the only property rights that are worthy of consideration are the rights to that property which entail some social value and social service. But in the Bill, as we have it, we are contemplating allowing compensation, shall I say, to the owner of a mansion which was destroyed. Now, the loss in that case is, to a very great extent, a sentimental one, because in many cases the owner does not inhabit it, only occasionally, and while it is a social loss it is not a direct personal loss of livelihood. The owner probably will not go without one meal or one extra pair of boots or any other article of clothing or one hour of pleasure because of the loss of his mansion. Then we have house property—small house property—which has been destroyed and the owner of which has to be compensated for its loss. He may or may not rebuild under the Bill as proposed; but his loss in the matter is merely his loss of an instrument for extracting profits or rents. It is not a personal loss of livelihood, except in so far as that person is living upon the rents which he is able to extract. But the loss of a business through destruction means the actual loss of livelihood or of comfort. It means to the person who has been deprived of the opportunity for employment the sight of his children going hungry and without clothing. It means actual personal suffering in very many cases. That is a direct consequential loss that reasonably could be charged upon the communal insurance fund, because that is what it means. The question has been raised as to the wisdom of this system of compensation for malicious damage. In a normal period it might be doubted whether it is wise to have such a provision, though I think it is a justifiable principle inasmuch as it throws upon the community the responsibility for the conduct of the members forming that community. It throws upon the community responsibility for at least having some say in, shall I say, the education, training and environment of the individual and in the making of his character. I think it is reasonable to say that there should be social responsibility for malicious damage. In normal times it may be considered to be a normal risk of citizenship, and that every citizen should bear that normal equal risk. Then when you have abnormal times and certain elements in the community are undergoing abnormal risks it is surely a reasonable proposition to say that the remainder of the community as a whole should bear an equal proportion of the loss occasioned in the course of these abnormal risks of the future. The Minister has very definitely told us so far in the course of the discussion that compensation for consequential losses cannot and will not be paid. I am arguing that there is a good case to be made for consequential losses where the damage has occasioned direct loss of livelihood, and I would urge the Minister, if his last statement on this question is unalterable, that they will not agree to any legal claim, that, at least, they should put into the category of ex gratia grants those people who can show that they have suffered unduly through the damage to buildings, factories, workshops, shops, and generally through damage occasioned by these extraordinary times. The community has a responsibility, and if there is anything whatever in the doctrine of social responsibility here is an occasion where that doctrine should be applied. In the constituency that I represent some parts of it have suffered abnormally, and other parts of it have not suffered at all. Those of us who have not suffered have a right to pay towards retrieving the damage done to those who have suffered, abnormally, through no fault of their own, and under circumstances which they could not prevent. So it may be in other parts of the country. Where the material damage has been small it is not unreasonable to ask the people in those parts of the country to bear some of the responsibility, some of the burden that is being borne to an excess by the people in other districts. Perhaps if we face this doctrine of social responsibility for extraordinary diseases we would find a clue to the prevention of these diseases in the future— political diseases, mental diseases—and I would urge upon the Ministry the desirability and the wisdom of accepting the principle embodied in this amendment— that where citizens have been deprived of the opportunity to give service in the production of social value they have a claim to compensation for the abnormal risks they have taken and the extraordinary losses they have sustained. I am not asking to extend these consequential losses indefinitely. I am not asking that shareholders in a concern who may live in Timbuctoo should be compensated for loss of profits. I am not asking that landlords should be compensated for their loss of profits as such, while I do ask that the houses should be rebuilt. I am asking that the compensation consequential upon destruction should be given to those who have suffered actual loss of livelihood, and whose suffering has been personal and actual, rather than sentimental and the suffering of men who simply have been deprived of opportunities for extracting rents, or interest, or profit. I beg to move the amendment.

I find myself in the unhappy position of not being able to support either the amendment or the Section which is before the Dáil. I have very great sympathy with the opinions expressed both by Deputy Gavan Duffy and Deputy Johnson. If there is any basis for legislation in these days, surely it must be not merely social responsibility but social equity and justice. I can quite understand the desire of the Minister for Finance to curb expenditure that arises out of destruction. But you do not, I think, escape from the responsibility of legitimate repayment by repudiating these legitimate repayments. It seems to me unless there is some much more convincing argument put forward by the Minister for Finance than hitherto that what Section 6 proposes is to repudiate legitimate claims upon the State. To make this definite sweeping assertion, that consequential losses must be ruled out entirely, seems to me to deliver judgment upon such issues as this which will not find the assent of the majority of the community. I do not say that all consequential losses will be legitimate and will be such as should be met, but it is one thing to refuse and rule out exaggerated and untenable claims for consequential losses and it is quite a different thing to rule out claims that are quite as legitimate as the claims for actual damage. For that reason I will require some very, very much more convincing argument before I can find myself induced to vote for this Section. As regards the amendment, I cannot see where the scope of consequential damages is going to end under the terms of this amendment. For instance, the destruction of a bridge in the South of Ireland prevents commodities reaching the South for traders. There is loss of work, and shop assistants may lose their employment. Those in whose warehouses the wages of these disemployed persons were lost suffer also a similar loss of employment, all consequential on the destruction, say, of a bridge over which traffic from other parts of Ireland would have to pass. So you get an ever-widening circle which seems to be one in which there is no finality and which creates the condition where those who are controlling the finances of the country will not be in a position to judge where their commitments will end. For that reason I think the scope of the amendment is too wide. Its implication is too intangible and it is impossible to judge how far its commitments would take the finances of the State. However, its principle and purposes are good inasmuch as it does strive to get the recognition by the State of its moral responsibility in the matter of legitimate consequential damages just as much as it gets recognition of its responsibility in the matter of actual damage. I see no distinction where the legitimacy of the claim is proved. I can agree with Deputy Gavan Duffy. I can see no real sane distinction, no distinction of equity, no distinction of morality, and no distinction that ought to be convincing to the Dáil. I hope the section will be re-drafted so that when dealing with this Bill we will evolve a measure or instrument which will be regarded as one that does not repudiate the legitimate responsibility of the State, but that aims at securing equal justice for all citizens.

Deputy Milroy says that the principle of the amendment is good. I think he will find, if he re-reads the amendment, that it is not nearly so wide as he seems to think it is. His illustration of the bridge is a little bit wide of the mark. When he reads the amendment he will find, "but shall include loss of wages, salary or other remuneration in respect of services rendered in the actual conduct of any business carried on in the property injured." So that his illustration of consequential losses by shop assistants and various other people a long distance away from the bridge is not at all pertinent. I hope as he agrees with the principle of the amendment that when he re-reads the actual amendment he will be in a position to vote for the amendment and that other Deputies who see good in the principle and who desire to do justice will also vote for the amendment.

The amendment would tend to create a privileged class just as any amendment to Section 6 which allowed compensation for consequential loss to the owners of property destroyed would set up a privileged class. If you are going to allow compensation for loss consequential on injury there is no logical reason at all for confining that compensation to people who own the property destroyed or to the workers who had work in connection with that property. That is one of the things that make it necessary to rule out entirely compensation for consequential loss. Otherwise you would have people who had their property burned, or people who worked in the property burned, getting advantage over the rest of the community. You would have them in the position of the people who during the European War were drawing their separation allowances and who used to toast in houses of refreshment that the war might never end.

Supposing a factory is burned we do not propose to give compensation for consequential losses to the owner of that factory. There are very many reasons why we should not give it. First, there is the possibility, in fact the certainty, of the invitation to fraud that would be given by doing so. The profits he would make would be problematical, and would be very difficult to prove. In any case, he might not differ from many other business men and many other people who would be injured by the loss of the factory. If the owner of the factory is entitled to compensation for loss of profits, undoubtedly the workers in the factory are entitled to compensation for loss of wages and salaries, and the publican in the village whose business is destroyed, because the workers have no money, is entitled to compensation for loss of profits; and the barman he had to dismiss, because his business fell away, would be entitled to compensation for loss of employment, and so on. If we were once to admit the principle of compensation for consequential losses we could find no point at which we could logically draw the line. There is no logic in drawing the line at what you call direct losses, and I do not know what would even be meant by direct losses. If the loss is caused, of a certainty, by the damage which was done, then if you allow the owner of the property to be compensated, if you allow people who work in connection with the property to be compensated, there is no reason for refusing compensation to people whose loss was certainly caused by the damage. If you take the case of the factory which was destroyed, if you allow compensation for consequential losses to the owner; if you allow for compensation for the loss of wages to the workers, there is no reason at all for refusing compensation to the railway for loss of traffic. I think anybody who will really consider the practical side of the matter will agree, that it would be the greatest mistake to extend the scope of this clause. It would leave people who suffered loss aggrieved because others, who had perhaps suffered less than those who happened to belong to the privileged class of owners of injured property, would be put in a better position than those who happened to be workers in connection with the property injured. It would, perhaps, double the bill, and would lead to fraud and perjury, and would not only lead to the State being mulcted, but would be very undesirable from every public point of view. When dealing with actual damage to property you have certainly something tangible to go on, but when you come to consequential losses you have nothing tangible. You invite the owners of the property injured, and you invite the workers, if you include them, to let their imagination get to work. It might be popular to advocate this if we had not to pay for it, if we were still attached to Great Britain, and if the British were going to pay. It is the sort of thing which would be good business for anybody, politically to advocate, but now that we have to pay the bill ourselves, the same politics and the same sort of public appeals that were popular then will not be popular now, and will not be of such advantage to this country as they might have been in the past. We have to pay the bill and to consider the community as a whole, and consider whether the community will be assisted by heaping up an extravagant bill, or whether it will be more advantage to the country, by keeping the amount of the bill within reason, and paying only for the actual damage done to property, and not going into these matters, where no line can be drawn, and which would make it impossible to form any sort of reasonable estimate of the amount that would have to be paid.

I must say it was with some surprise I heard the Minister for Local Government confess that when dealing with matters of this kind he would put in a strong claim provided the British Government was going to pay; but he would not accept the principle we advocate because it has to be borne by the Irish people.

I did not confess that, but I pointed out that was what would have been regarded as good politics some time ago.

Well, somebody that the Minister has in mind would have regarded that as good politics some time ago, so I take it from that that he opposes this thing on principle. I regard it not only as a matter of right principle but of good politics, no matter how wide the area of the distribution of the burden may be. This community which has taken upon itself the rights and privileges of self-government has to bear its responsibilities as a community. It is unreasonable to ask that those few people, who by fortunes of war, without being participants in that war, have been brought into the range of fire, perhaps because of the failure, neglect or incapacity of the organ of government, should be made to bear an undue burden of the pains of these years. So far as it is possible for finance to ease that burden and that pain it should do so, and I say it is a burden which ought to be borne generally by the community rather than by the individual who happens to have been caught in the fire.

I have no intention of delaying the reply of the Minister for Finance. I wish merely to remark that while Deputy Milroy expressed himself in favour of the principle of the amendment, the mover of the amendment did not realise that by introducing this distinction, by which only one class of the community was to have the privilege of being compensated for consequential damage, those of the community who are just as well entitled on any principle of equity or morality to be recompensed, are ruled out by the amendment, so that the amendment is, in fact, opposed—whether it be in doctrine or not does not matter—in its practical effect to all claims or pleas for compensation for consequential damage. Now, there was a considerable amount of reference, not very explicit, to principles of equity and principles of morality. It seems to me that the case made by the Minister for Finance on the Second Reading was that he waived these principles, the consideration of equity or morality, or anything but the one consideration—namely, the ability of the community to raise the money requisite to pay whatever compensation that would have been awarded. That is, in other words, a question of public policy. Some of you may have read a novel that was in great vogue 20 or 25 years ago, called "Ten Thousand a Year," in which the hero, Tittlebat Titmouse, who had suddenly come into a large fortune, and found himself a member of Parliament in consequence, introduced a Bill to give everybody everything.

Hear, hear.

Now I always felt that the hero was engaged in a very laudable enterprise, one of excellent, humanitarian and noble sentiment when he wished to give everybody everything, and, personally, if I had it in my power, and I believe the Minister for Finance would say the same if he had it in his power, he would most generously and liberally compensate everyone who has suffered in any degree that is measurable during the recent wars. How are we to determine consequential loss? Deputy Gavan Duffy, who has a particularly subtle mind, an ample knowledge of law, and a considerable experience of law courts, said with great confidence, that he did not know what consequential loss is. After all, this Bill is intended to do what is feasible, and, in so far as it can do what is feasible, it is to be commended. Can we measure consequential damage? Deputy Johnson thinks that we can so far as regards wages and salary, and I presume he means to measure it inside the date limits expressed in this division of the Bill, because it is not proposed, I am sure, to compensate for loss of wages and salary, as we say in secula seculorum, but merely during those periods. That alone would be measurable. If we go into other considerations, which Deputy Johnson so lightly passes aside—the loss to men of houses built as legitimate investments of the savings of thrift; if they are not to be compensated it is not upon an equitable or moral principle, but on the very same principle upon which I conceive the Minister is now proceeding—namely, that we must draw the line somewhere. It sounds dreadfully immoral to say that we must draw the line arbitrarily, summarily, or that we should draw it here when it is so palpable by drawing it that those numbers of people who deserve our sympathy, and who are really and morally and equitably entitled to compensation are left out of the application of the Bill. As it appears to me, the Minister who is charged with the raising of revenue, and that by taxation on the people at large, is obliged in duty to consider what amount of burden that community at a given moment can fairly be called upon to bear, and he must therefore consider to what extent he can repair injury without inflicting a new one. There is such a thing as robbing Peter to pay Paul. That is not a doctrine that the Deputies in favour of consequential damage would support— that because Paul happens to belong to a particular section of the community, he is to be compensated at the expense of Peter, who is a citizen with the same rights. So far as I am personally concerned, and so far as sentiment, morality, and equity weigh with me, I should be in favour of giving ample compensation, and of setting up a Commission of experts who would probe into the consequences, and attempt to measure them to the furthest possible extent. But I cannot shut my eyes to the actual facts of the situation; and while I am in favour, academically and theoretically, of consequential damages being repaired, I have to hold, as, I hope, one who has consideration for actual facts, that we must cut our coat according to our cloth, and while attempting to do the utmost we must have constantly before our minds how much the public exchequer can bear at this particular moment.

I should like to congratulate the Deputy who has just spoken on the sensible way in which he is looking at this problem. We have heard a good deal about the Second Dáil. I suppose the Deputies here do not know much about what happened at the First Dáil. I think it is right, if there has been an improvement, that Deputies ought to know something about it. I was told once by a Deputy in the first Dáil that I was the most immoral man in Dublin. It seems, in regard to the case made here, that my lapses from morality are very small. There is no moral sanction, Deputy Duffy says, for the proposal that we are putting up. There is. There is a very high moral sanction. We cannot ask the State to take on a liability which the State cannot discharge. The liability we are asked to take on in this case for consequential losses, is a liability which is beyond the resources of the State to meet. Looking at this question of consequential losses, we must bear in mind that there are consequential losses that the State could not possibly hope to be able to meet, even if it were so inclined. Take the case of the struggle for the last five or six years. How many young lives have been lost? How many careers have been destroyed? How many of the people who have taken part in that struggle have practically blasted their hopes in this life? Their future, everything they could have done for themselves, has been destroyed by reason of the extraordinary strain that struggle brought upon them. Are they not as much entitled to get compensation for that as people who have lost their businesses, or people who have lost employment? If there has been anything gained, surely it is because of the efforts of those people? Those efforts were not entirely confined to men. There are women also who have lost in the fighting. We cannot possibly compensate those people. Recently in the Dublin Press a letter appeared in which it was stated by the writer that he noted that persons who have put in claims for compensation will not derive all the comfort that they expected from this Bill for compensation that we have introduced. That is very largely the view-point of those who have suffered. They see an opportunity of getting comfort and they are utterly in different to the strain that this is going to put on the State in order to give them that comfort. Take the most conservative estimate that I have heard mentioned in connection with the damage. It will be within the recollection of Deputies that the late Commander-in-Chief estimated it at something like forty millions. If it were forty millions the proportion of the City of Dublin, if it were to be the liability of local authorities, would be in the neighbourhood of four millions. Mark what a liability of four millions would mean if added to the present liabilities of the Municipality. I expect the indebtedness is now somewhere in the neighbourhood of two millions. That would mean that the present indebtedness would be trebled, and that the citizens would now owe six millions instead of two millions. It is very easy to estimate what the annual outgoings on the interest of that sum would amount to on the ratepayers of the City of Dublin; the interest alone on this money would be 4s. 2d in the £. Is there any member that anybody knows of on, say, the Dublin Corporation, who will stand up and say:—"This liability of 4s. 2d. in the £ is a moral, a legitimate, a legal and an equitable liability of the City of Dublin, and I propose that the citizens should have 4s. 2d. in the £ assessed on their rates to discharge this liability?" You know that it is not the case. Very few people have as much experience as I of having to increase rates. I moved an increase in the Dublin Corporation of 5s. in the £ on one occasion. That was during the war period when there were war profits, when business could afford it; but now, when everybody knows that business cannot possibly afford such a distribution of finance, I think it will be admitted that there is no person in this country who would stand up in any Local Authority, and move to place upon their rates the sum of 4s. 2d. in the £ to pay the interest on this money. The only previous case which might possibly have any analogy to the present was that which occurred in 1916, and the liability which had to be borne at that time was one-tenth of the amount that we have to bear, and the back which had to bear that burden had forty times the strength of the back which has to bear this burden. And I say that the proposals outlined here are more generous than those which were entertained at that time, and passed and accepted, and so far as I know there was no very great grumbling about them. There are cases in connection with consequential losses that would never come before any court or tribunal. I know myself three doctors in the City of Dublin, each one of whom would have a claim for consequential loss, but they would never think of presenting such a claim, and if we are to tax them to pay consequential losses for others I would like to know where the morality or equity of the thing is. One of these men was on the list to have his house destroyed by Mr. de Valera's dupes, and a few years ago I asked that man to see and attend Mr. de Valera when he had a temperature of 101. We are told that we are repudiating legitimate liability. I have explained at some length that any legal liability that there is is a legal liability of each Local Authority. If the members of the Dáil who want to pay consequential losses wish that local liability to remain, well, they can so arrange it. The State cannot bear it. We are told by one editor of a Dublin newspaper that we are flouting public opinion. The editor in his chair says that he is public opinion, and we dare not flout him. Now, it is some months ago since I heard first that we were to have this political offensive on the Finance Minister. It has come somewhat sooner than was anticipated, and I rather welcome it. We were told that the people would remember this attitude at the election. I hope they will, and that the editor will take it up and contest one of the seats with us, and that he will tell the people the plain truth there—that he wants to tax them twice as heavily as we want to tax them. The real question at issue here is to borrow this money. Who is going to pay for it? Not one single suggestion has been made by those who stated we were flouting public opinion as to how we are to raise that money. If we leave the burden on the local authorities, that editor will be the very first to say you cannot place that burden there; it is too heavy; and the reason it is too heavy is that if it is placed there it will have to be paid. I cannot agree, sir, with the amendment. In my opinion the amendment, although innocently, would restore the consequential loss claim and the consequential loss liability. In my view the amendment would not be wise. There have been losses, I know, on the part of those who have been knocked out of employment, but I think that the Deputy moving this will admit that these losses have been in the vast majority of cases remedied to some extent by alternative employment. In the cases I have seen that have been presented to us—the claims for compensation for consequential loss—the amount claimed would, I think, represent almost the entire wealth of some of the families from the time of Adam down to the present day. I am positively certain that at no time was such wealth in this country as one would be led to believe if you were to consult these claims. Now, it must be remembered that consequential loss does not mean what Deputy Gavan Duffy indicated—that is, for example, if they came and burned my house, and Deputy Gavan Duffy's house is beside it, and that his house takes fire, that is not a consequential loss. Consequential loss would be if my house were burned, and I took another house and went to the expense of paying rent for it. If I had business, and was making one hundred a year, I could claim one hundred a year while I was out of business. That loss would be consequential. If it be not clear, we will consider the point of making it perfectly plain in the section that what the Deputy has in mind is not the case, but I cannot say that there is any fear of such a thing happening. Now, I have only to say that this Bill is a very heavy liability. We are undertaking in connection with the cost of this Bill as much as the country can bear. If it is proposed to extend the scope of it and rope in other liabilities, well, then, very heavy additional imposts on the taxation on the country must be imposed. I think we have certainly reached the peak as far as taxes are concerned, and that the country cannot bear any more. We have endeavoured to distribute the compensation as fairly and as equitably as the circumstances of the case permit. Nobody will, I expect, be in as good a position, if he had suffered, as he was before the damage was inflicted, and it certainly is not the intention to place anybody in a better position. The State itself will not be in as good a position; and it ought to be remembered, too, that there are lessons to be learned from the present financial position on the Continent. Twelve or fourteen months ago we had a good handicap in the race of nations—with those of them that are on the Continent. To-day we start with just as big a handicap as any one of them, and a good deal of hard work, of heavy expense, and of heavy taxation remains to be borne before we start again at the scratch. I believe the handicap is sufficient, and I believe that the nation cannot bear any more; and if it be proposed to increase that amount, I myself certainly, on my own part and also on behalf of the Ministry, say that we cannot accept responsibility for that.

Amendment put. The Dáil divided: Tá, 10; Níl, 40.

Riobárd Ó Deaghaidh.Tomás Mac Eoin.Liam Ó Briain.Tomás Ó Conaill.Aodh Ó Cúlacháin.

Liam Ó Daimhín.Seán Ó Laidhin.Cathal Ó Seanáin.Domhnall Ó Muirgheasa.Domhnall Ó Ceallacháin.


Liam T. Mac Cosgair.Donchadh Ó Guaire.Seán Ó Duinnín.Mícheál Ó hAonghusa.Domhnall Ó Mocháin.Séamus Breathnach.Pádraig Mac Ualghairg.Peadar Mac a' Bháird.Darghal Figes.Seoirse Ghabháin Uí Dhubhthaigh.Deasmhumhain Mac Gearailt.Seán Ó Ruanaidh.Mícheál de Duram.Domhnall Mac Carthaigh.Éarnan Altún.Sir Séamus Craig.Gearóid Mac Giobúin.Liam Thrift.Liam Mag Aonghusa.Pádraig Ó hÓgáin.

Seosamh Ó Faoileacháin.Seoirse Mac Niocaill.Fionán Ó Loingsigh.Séamus Ó Cruadhlaoich.Risteárd Mac Liam.Caoimhghin Ó hUigín.Próinsias Bulfin.Padraig Mac Artáin.Séamus Ó Dóláin.Aindriú Ó Laimhín.Proinsias Mag Aonghusa.Éamon Ó Dúgáin.Peadar Ó hAodha.Séamus Ó Murchadha.Liam Mac Sioghaird.Tomás Ó Domhnall.Éarnan de Blaghd.Uinseann de Faoite.Domhnall Ó Broin.Mícheál Ó Dubhghaill.

Amendment declared lost.

Upon this question of the actual clause itself, I would like to say I voted against the amendment because I think the amendment very well illustrates the difficulty of endeavouring to follow out what may be called consequential losses in the widest possible meaning of the term. But there is consequential loss, for which no allowance is made in the present Bill, to which I referred last Thursday, and which the Minister, in his reply, neglected to meet either from lack of appreciation of the argument, in which case the fault was mine, or by studious neglect of it, in which case the fault was his. Remember there is an argument, and I would like to illustrate that now, as a result of the discussion on the matter, where we could make some kind of a distinction between classes of consequential loss. There was no attempt, in my mind at least, or I think in the minds of others, to follow out consequential loss in the way that some Ministers have suggested—to follow the loss of salaries and the loss of wages, and to follow it even so engagingly as the Minister for Local Government suggested even to the bar tenders' losses. These were consequential losses and details not in my mind at all. I took to illustrate my argument, and I return to it, the two actual cases I took last Thursday. I took two cases of "A" and "B," I say for the sake of argument both "A" and "B" have lost £5,000. "A" has lost it in a dwellinghouse, which is of a total value of £5,000. "B" has lost it in certain property variously composed, but of which £500, for argument say, is in bricks and mortar that went to make up the building that was destroyed. The rest is in a definite measurable marketable entity known as business. That entity is measurable, marketable and saleable, and is known as goodwill. Now, in the case of "B" the loss of that particular factory has meant to him not merely what the loss of the building meant to "A;" that is the loss of so much timber and bricks; it meant this, or it may have meant it, and it can be ascertained whether it did or not mean it: the actual disappearance of a business that may only exist in that particular locality. There are certain businesses here in the City of Dublin which if moved from a particular site to some other site would mean that the good-will of that business would have to be cut down by half. In that case there is a definite loss by the loss of that building which is absolutely as positive and real as the loss of the building itself. But if I understand this clause as it now reads it means that "the 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." I think the case could be met very fully if one could agree as to the property and omit the three words about "the property injured." If the clause were to read "shall be limited to compensation for the actual damage done" and leave out the words "to the property injured" and then go on "and shall not extend to any compensation for loss consequential on such actual damage" that would largely meet the case, because when that factory is burned the actual damage done is not merely the damage done to the building itself but it is damage done either owing to the entire disappearance of the business and its good-will or owing to the partial disappearance of the business and of its good-will. If it could be shown in a court of law that no part whatever of the good-will has disappeared and that it has been maintained intact by the business being transferred to some other site then obviously no damage could be compensated for. These are matters that would have to be cleared up and shown definitely in a court of law. But if it did happen that loss accrued—I take the factory as an example, a shop would be equally applicable—if the disappearance did mean the destruction in whole or in part of something that is not less valuable than the building itself, and not less estimable or measurable, then it should be compensated for, as I believe, and that compensation is definitely disallowed by the clause as it stands here though it is that kind of consequential loss. I imagine there are some who would say that loss of that kind is not strictly consequential, and if that contention were put forward in this Dáil one would have to agree there was a great deal of substance in it, but so far as I read the words "actual damage done to property injured," I do not take that word "property" to include the loss of business or the good-will of the business. Therefore I urge that the clause would be greatly improved if the four words, "to the property injured," were excluded, and we were to read the clause that this part of the Act shall "be limited to compensation for the actual damage done, and shall not extend to any compensation for any loss consequential on such actual damage." In that case, I believe, it would happen that equity would be achieved, and we would not be committed to this fantastic following out of consequential damages to the very end. A futher gain would be achieved to which I referred when I spoke on Thursday last. It is this, that, as this Act now stands, we are to compensate absolutely and wholly a person who is unproductive in the degree in which that person is unproductive, and we are to compensate the other person only in part who is productive to the degree and the proportion in which he is productive. I think that is a very unsound principle to introduce in any Act. Let me say, briefly, that I voted against the previous amendment because it was a following out of consequences in a way that was impracticable and fantastic. I was not in entire disagreement with the amendment, but I urge that the clause as it now stands does exclude from compensation real property —the property of persons destroyed in whole or in part. I urge that the exclusion of these four words, "to the property injured," from the clause would permit compensation to business without following it into salaries or wages or other matters. I base my belief on this ground, that good-will is as measurable and as marketable as a building, and that good-will, if it should be destroyed, or in the degree in which it is destroyed, should be compensated for equally with the destruction of a building, seeing that they are both marketable and saleable.

The case presented to me is that of "A" and "B," who have lost five thousand pounds in the destruction of their business. "A" loses £5,000 in bricks and mortar, and "B" £4,500 in the loss of the goodwill of the business. The question is, the restoration and the payment of compensation for the loss of goodwill for a period. That is consequential loss, and is based on the assumption of a normal profit during the period in which there was not a normal profit, if we are to accept all the statements that have been made regarding the losses that business has suffered in recent years. I take it that during the struggle—that is, if we are to take the dates mentioned, from January, 1919, to July, 1921—quite a large number of people have suffered consequential losses which are immeasurable, and for which compensation cannot be paid. They have, I suppose, as good a right to compensation as those who have sustained losses since July, 1921, to the present date. If the business be restored the goodwill will naturally follow.

Not necessarily.

They are not, of course, bound up entirely with one another, but, as a rule, one goes with the other. One does not usually pay good-will in respect of premises, apart from the premises themselves, although such a thing has happened. Usually they go hand in hand, and the restoration of business is a restoration which will take place on, I expect, an improved and better plan, with all the advantages naturally consequent upon such a restoration; more adaptable and more suitable for whatever business was carried on there, and, possibly, more economically. A claim for consequential loss in such circumstances is, I say, almost impossible correctly to find. Furthermore, it opens the door to many such cases, as the Deputy refers. We hear of cases of hardship, individual and other cases, and of arguments from the particular to the general. We are concerned with the general principle of cases; if we were to take up particular ones, then you might as well open the door to compensation for every possible kind of claim. I do not know whether, on re-consideration of this clause, something which would indicate the point of view that we have in mind might not be more clearly brought out, but, as regards the principle, we cannot depart from it, and I have already explained the reasons why we could not do so.

Question put:—"That Section 6 stand part of the Bill."
(1) No compensation shall be payable under the Criminal Injuries Acts in respect of the loss or destruction of or damage to any of the chattels to which this section applies occasioned by an injury to which this part of this Act applies.
(2) The chattels to which this section applies are:—
(i.) Watches, jewellery or articles of personal ornament kept by the owner otherwise than as part of his stock-in-trade.
(ii) Coins, bank or Government notes or currency of any country.
(iii) Postage or other adhesive stamps.
(iv) Postal orders or post office money orders.

I move Section 7.

I beg to move Amendment 2: "To omit Sub-section (2) (ii.)." The words are, "Coins, bank or Government note or currency of any country." The whole clause is that "No compensation shall be payable under the Criminal Injuries Acts in respect of the loss or destruction of or damage to any of the chattels." Among the chattels there are four classes set out, and one of them is "Coins, bank or Government notes or currency of any country." My motion is that that be deleted. My argument on the Second Reading had reference to taking that actual provision and comparing it with some of the provisions in Section 11, especially the provision under Sub-section 2, where it says that if certain documents be destroyed that compensation may be conferred in respect of them. The documents were "title deeds and other deeds, contracts and agreements in writing, debentures, stock and share certificates, and other documents of title to any stock or share," and so on. I will just take one of them for the sake of example. I compare the loss of debentures with the loss of bank or Government notes. I did on the last occasion take "agreements." I refrain from taking them now, in spite of the fact that the Minister for Local Government retorted on that occasion by one of the most amazing arguments that ever was heard in this Dáil, or that I ever heard in this Dáil. When I asked him how it was that it should be provided that compensation should be given for an agreement and no compensation for a bank note, although equal proof may be produced in court as to the loss of both or either, his reply was—I have not the actual words here, and I endeavour to do him perfect justice in what I do say—that one could buy back an agreement, one could get another agreement or a copy of it for a very few shillings, whereas the money meant a very big question, and there was a lot more involved. In other words, that if compensation was cheap it was right, but that if it was costly it was wrong. I think that is entirely a new principle in law or morals or equity or anything I ever heard. Yet it was the argument put forward here. I avoid that, and I take a debenture. There may not be a very large number of debentures available to-day that are very costly. Let us take, for example, some debenture. Here is a debenture that a man loses. His neighbour has no debentures, but he has got Irish bank notes. Both their houses are burned. The man who loses his debentures is recompensed for his loss only if he can prove the value of the debentures and the loss of these debentures. If the man cannot prove that these debenture shares were his, and that they were lost, he will not get any recompense, but if he can prove that he held such debentures, and that they were lost, he will get his recompense. But his neighbour holds certain bank notes. He may be able to come into court and prove that he had such bank notes, and prove that such bank notes having been held by him were lost, but he can get no compensation. I want to know what kind of equity, what kind of reason, let alone equity, there is in any such an argument as that. I suggest, if a man loses either one or other, that there is only one test by which we can discover whether that man should, or should not, be recompensed and that is that he can bring sufficiently strong direct or collateral proof to show that he had such property, and that such property has been destroyed and if he can prove that in one case, he should be entitled to recompense or compensation; and I think that if he can prove it in the other case he should be equally entitled to compensation, and I, therefore, urge that the words, "coins, bank or Government notes or currency of any country," be deleted. They are not, I admit, direct wealth—no one will argue at this time of the day in the year 1923, that coins or currency are direct wealth —but they are the nearest equivalent to direct wealth that is yet ascertainable; and if any person chooses to present me with a large share of them, I would be quite prepared to take them with a high degree of fortitude. They are the nearest approach to direct wealth. They mean more than the loss of a building. The argument may be put that it is hard to prove their loss. Even if it is, the lack of proof will be a denial of any compensation, but if it can be proved, then by all that is equitable, compensation should be awarded for that loss seeing that it is, or may be, and probably would be, in a large number of cases, very familiar to people in this country where farmers have held coin, especially in the West of Ireland, and instead of banking it they keep it in the house. That is their all. It is more to them than the cottage in which they keep it. When that is destroyed they may be able to prove that they had such coins or such Treasury notes, and this Bill says "you may be able to prove it one hundred times over, but you will get nothing for it." I think it is inequitable and monstrous that such a clause should be in here, and I move that this Sub-section (2) (ii.), be deleted.

I support the amendment, and the only fault I find with it is that it does not go far enough. I should like the Deputy to propose to leave out Section 7 altogether. I take it that the object of Section 7 is to hit at things which are easily claimed for— where it is very difficult to control the fairness of the claim, or the fact of the existence of the objects claimed for. I would suggest to the Minister for Finance that the object aimed at, with which I am in full sympathy, would be more fairly attained if, instead of providing that you will not compensate for certain things, you provided that stricter proof of certain things should be given by the person claiming. Supposing you were to provide that compensation would not be given for articles mentioned in Clause 7, except upon conclusive proof that the claimant had these articles, then I should have no objection to this clause. While on this clause I want to put in a plea for a deserving and quite harmless class in the community which unintentionally, I am sure, is hit by this clause. I refer to collectors. People collect old furniture, people collect engravings. They will be compensated. Other people collect old coins or postage stamps. They are not to be compensated. Now, it is a question in each case of proof. I know that there are thousands of philatelists in Ireland; there are several hundreds in this city. They are people who insure their collections for £10 or £20 or £50 each year, or whatever the premium may be. These people can give proof positive that they had there an asset from the fact that for many years they have been paying insurance on its value. I would ask that some consideration be given to what I think is a fair claim, that people like that —it is particularly the case of many small investors who invest money in this way— should have consideration, and that people who bona fide are engaged in collecting items such as postage stamps or coins should not be excluded from any compensation, provided that the proof that they had the asset which they claim for is clear. I do not mind how cogent the proof is required to be. I do not mind how stringent the proof required by the Minister is made, provided that upon proof he agrees to pay.

Deputy Gavan Duffy and Deputy Figgis must have realised that in the framing of this Clause 7 the procedure was followed that has been uniformly followed by all insurance companies. An insurance company, as most of you are painfully aware, in issuing a policy upon the furniture of a house, specifically excludes coins and bank notes. Whether that is because it is easy to allege, after a fire, that they were consumed or not may be left to our own speculation. But the fact remains that it is one of the most difficult things to establish to the satisfaction of a court that a man of otherwise seemingly in sufficient means had under his hearthstone or somewhere in a crevice of his building stored away coin of the realm to the amount claimed. County Court Judges have told me that they heard recently, in claims that were not defended by the local authority, extraordinarily powerful swearing on behalf of claimants as to what they actually owned, and what they had lost; and whereas the judge was perfectly satisfied in his own mind that the man was committing perjury it was not within his competence to direct pertinent and testing questions to him that would have revealed the fact to the satisfaction of everyone in court. I think it would be extremely difficult, though desirable, to have what Deputy Figgis asks for, a most cogent and effective proof in regard to bank notes, let us say. But there is another item which he overlooked—he did not quite overlook it, because he made a passing reference to a kind of chattel or asset which, had he dwelt upon it for a moment, would have brought it under his notice. Protection is given to the jeweller for the destruction or loss of jewellery which was in his stock-in-trade. Why discriminate between that and jewellery in the possession of a private owner as a form of investment? During the years in which the inflated currency put a large amount of paper money in circulation here it was notorious that the farmers, who at that time were making huge profits, were at a loss to know how to get rid of the paper, and I saw one of them buying a diamond tiara in an auction room at 1,000 guineas. Picture to yourself the sad state of a farmer with his 1,000 guineas and auctioneers' fees invested in this diamond tiara, and it goes up or is lost, at any rate, in the destruction of his house, along with his hay ricks. Surely, he has lost an asset if he can prove that it was in his possession, and that it was destroyed. Deputy Duffy spoke of men insuring those things. There is, as you are aware, a special form of insurance for special articles of that kind. But I might insure for £500,000 worth of jewellery, and not have even a paste pin for my tie, and go on for some purpose or another, of commercial bluff or otherwise, paying a very large premium upon that to keep it in existence. But if it were a condition precedent to the issue of the policy that the articles alleged to be in my possession, and upon which I am taking out a policy of that special kind were valued—and that is the case with regard to certain of these policies, because before a policy is issued the articles to be protected are valued by an expert, and according to their valuation the amount of the policy of insurance is estimated—I would hold that in a case of that sort the production of such a policy, so issued, would be ample proof of the loss of the asset, and in that case it undoubtedly would be inequitable to rule out the owner from compensation. I can appreciate and approve of the idea in the Clause, but I think it is susceptible of improvement in the drafting.

The speeches in favour of the deletion of Sub-section (ii) of this Sub-section have been very interesting. Deputy Figgis proved his case in full that Section 11 ought to be deleted or amended, and I hope that the Minister in charge of the Bill will bear that in mind before we arrive at Section 11. But I do not think he has proved the case for deleting this particular part of the sub-section as distinguished from the other part of the sub-section. I do not think there is any case made for excepting coins, bank or Government notes or currency, while not excepting watches, jewellery, articles of personal adornment, or postage stamps. But what is most interesting in the contention both of Deputy Magennis and Deputy Figgis is that these things that have been hoarded, miserly in most cases, are of great moment to the owner, and should be compensated for, while a few moments ago they were not prepared to compensate for the actual suffering of an individual man or woman or that man or woman's children. I am not going to support this amendment, because I contend that if we are not going to compensate either for personal suffering or personal loss of a human kind, we ought not to waste or to expend the common fund upon losses which are merely losses of hoarded wealth or of personal adornments. I distinguish between these things which actually pertain to the life-giving functions and those other things which are merely accessories to aesthetic enjoyment or perhaps moral depravity. The farmer who will hand over 1,000 guineas to somebody else for the purpose of storing away, a tiara of hard stones with a brilliance, is not deserving of any particular consideration. And I am not very much enamoured of the countryman or woman who will hoard away bank notes in the expectation that they, at any rate, are always going to be a stand-by. If they had done that in Germany, Austria, or Russia five years ago, as undoubtedly many did, they would be suffering the fate that they will be suffering under these circumstances if this amendment is lost. They would be of no use even though there had not been a campaign of destruction in that particular country. I do not think any case has been made for making this an exception, but, as I said at the beginning, I hope the Minister will have been impressed with the argument in favour of deleting or amending the section.

I would like to congratulate the President on his ally. I noticed that when his ally was speaking he looked extraordinarily rueful about it. We must even bear the bed companions we earn. Briefly, I would just like to say that the whole purpose of my amendment would be excellently met by the suggestion of Deputy Gavan Duffy that the clause should remain as it is, but that some words should be added that these chattels shall not be compensated for unless and until there is definite and direct proof offered both as to their existence and as to their loss. I urge, if there be such direct proof in existence available, that compensation in that case should be granted.

I was greatly interested in the attempt made by the Deputy who has just spoken to take in the Deputy whom he has catechised for supporting the Government. He made certainly a very gallant effort to rope in the Deputy and his party in one of his amendments, and although he looked at me, the Deputy evidently did not walk into the parlour as Deputy Figgis expected. Now, for that purpose he must be bracketed along with me in the same ignominy and desolation in which Deputy Figgis would like to see us. I think Deputy Figgis might reasonably have made a better case for these particular amendments that he has put forward. There is actual loss through robbery and actual destruction by fire or sword—two very separate and distinct claims. In the one case he would have been justified in asking what was proposed to be done for persons who lost bank notes or Government notes of any currency in the event of their being destroyed by fire. That would be a perfectly fair question, but with that peculiar acquisitiveness which distinguishes the Deputy, he grabbed for everything, but will give no assistance to getting anything. If the case had been put up that we should have these particular cases of destruction investigated by a County Court Judge and that the machinery of the State should be utilised afterwards where such evidence was conclusive—not proved, mind you, but conclusive, as you can prove a great many things in these cases—it would certainly be open to consideration whether some compensation should be paid to these persons. But there is another class of case in which a person like Deputy Figgis, who keeps, I suppose, huge sums of money in his house as a sort of invitation to Irregulars is concerned. That particular case is one in which I could not think of making any allowance. What are the facts? The Deputy evidently is not aware that receipts have been issued by Irregulars all over the country for damage directly the Bill was introduced. These were receipts for the seizure of £50, £100, motor cars, and so on.

I have not in mind robbery, but fire.

The two words are set down there in the Bill, if I am correct. The Deputy, as a rule, reads rather carefully. "Loss or destruction." Deputy Magennis is apparently very much alive to the case. Those are excluded from the insurance policies, and you are asking us to do more than the insurance people will do. Is that reasonable? I do not think it is.

I only supported this amendment in so far as things that were assets as regards the possession of which strict proof would be forthcoming—things which were in a man's private house as so much stock-in-trade, so to speak, as actual stock-in-trade would be in a trader's shop. I limited myself to that.

Stock, other than part of stock-in-trade. I think that is reasonable. We are not concerned with that now—only with the amendment. Having regard to the period through which we have passed, everybody knew there was a certain risk in keeping coin, bank or Government notes other than what was actually required for use. It was dangerous not alone to themselves, but dangerous to the State, because it was the food on which the Irregular activity was living. I speak of the Irregulars in that sense, and I include all those robbers, as well as idealists who, perhaps, think they are doing right in going into a post office and seizing our money—robbers and others who have really got an excuse for continuing when such opportunities were given them. I think that if a person loses in that case he deserves to lose, and certainly I am against giving compensation.

I did not understand that robbery was included in that—but supposing it is. Take the case of fire. Do I understand that he will allow compensation if there be conclusive proof of loss by fire?

No, why should we compensate on behalf of the State a person whose possessions were a claim on some other person? A bank note that a person possesses is not wealth in the ordinary sense that the State should compensate for its loss—inasmuch as when bank notes are destroyed, if conclusive evidence can be given of destruction, compensation will be allowed by the bank. Why should we be asked to do it. If you asked me if it be possible for us so to word the clause as to assist a person in a case of that sort in which proof is given I would say "yes, we will consider that." I will put in something which will facilitate a person for securing a claim not against the State, but against the bank.

I am urging on the President a certain course of action, because I suggest that the answer he has given is not exactly accurate, through no intention on his part. If certain bank notes be destroyed the bank will compensate if conclusive evidence is given of such and such a bank note being destroyed, but not in the case of notes the numbers of which were not known. That is the difference.

Would you allow me to reply to Deputy Johnson who, whether it was for debating purposes or otherwise, I am not sure, seemed to be under the impression that Deputy Figgis and I in voting against his amendment, expressed a lack of sympathy with the working men who, through the destruction of a factory in which they were employed, were thrown out of work. Of course, on the slightest reflection, Deputy Johnson will realise that there was no such sentiment in our souls. He himself is very keen, as I am, on providing, as he stated in a recent debate, aesthetic surroundings in schools for the children of working men to develop their artistic sense, and give them an enjoyment of the beautiful, but he objects to a member of the Farmers' Union investing in a work of art such as the Diadem of Halicarnassus, or some other great gem, as it put out of action a certain amount of capital. Now, we have had an extraordinary political economy put before us this evening. According to the Deputy's contention any man who has more money than he can actually consume in the way of food, clothing, and house rent, must put it into some business whether it is likely to be remunerative or not. Presumably the profits to be derived, if there be any, from the business are in like fashion seriatim to be re-invested. No one is to be permitted to have any surplus capital, or to have provision made in the form in which the farmer of whom I spoke had made provision for the difficulties of the future.

Amendment 2, Section 7, `to omit——"

Is any change to be brought forward on the Report Stage?

I will consider it. I cannot go further than that.

I cannot be asked to specify from the chair what promises have been made across the floor by a Minister to a Deputy. I will put the amendment on the paper. Deputies must themselves remember what Ministers have said, and vote on the amendment.

I am quite willing to accept the President's word.

My word is considered, I tell you.

I withdraw the amendment, in respect of what the President has stated.

When I rise to put the amendment it cannot be withdrawn. It should have been withdrawn before I rose. I am going to put it now. I want to add that I am having a computation made of the number of motions and amendments that have been withdrawn by certain Deputies.

Amendment put and negatived.

Question put: "That Section 7 stand part of the Bill."

I move Section 8—"(1) No railway company shall be entitled to any compensation under the Criminal Injuries Acts or this Act in respect of any injury to which this part of this Act applies committed against any property belonging to such railway company. (2) Nothing in this section shall affect any right of a railway company or any other person to compensation under the Criminal Injuries Acts in respect of an injury to property in the custody of a railway company for carriage or storage." I would like to tell the Dáil that I do not intend, in respect of Part I., to keep it there. We have come to an arrangement with the railway companies in connection with that, and I have issued an amendment covering it. I believe it is not possible to move that amendment now, because we have not made provision for it in the Money Resolution, but it will give Deputies an opportunity of considering it, and when we have regularised the procedure I will move it. In moving Section 8 now I would like it to be understood that I move it in the ordinary way, but we intend to amend it afterwards.

Are we to understand that the amendment circulated will not be moved at this stage of the Bill?

It cannot be moved at this stage, as the expenditure of money contemplated in the amendment is not provided for in the Money Resolution passed before we came into Committtee. The President apparently intends to move it at a later stage.

Does that mean a new Bill?

I take it the President intends to recommit this section after passing the necessary Money Resolution.

There are questions raised in the amendment I would like to discuss—should they be raised now before the Bill goes out of Committee? I am not quite able to follow whether it is intended to pass a new Money Resolution before we go out of Committee for the purpose of discussing this new amendment.

No. The amendment circulated is not covered by the Money Resolution passed. The Money Resolution passed authorised "the payment of money provided by the Oireachtas for compensation and costs awarded by any decree made under the Criminal Injuries Acts." It does not provide for any payments based on an agreement between the Minister for Finance and the railway companies, so that I take it the procedure is that the amendment cannot be moved now. The Committee Stage will be finished, and the President will move a suitable Money Resolution, and will then move to recommit Section 8, so that on the Money Resolution, and on the amendment subsequently, Deputies will have an opportunity of expressing their views on the proposal of which notice is now given.

That is so.

I would like to know if the circulation of this amendment which is not now going to be moved indicates that some agreement has been arrived at between the Government and the railway companies with regard to compensation, as I intended to move that words be inserted which would make provision that railway companies would have to cover.

I think that would arise later on when it is proposed to put this into operation.

The point the Deputy has raised I suggest is of some importance, but I do not know whether it could possibly be met. Clearly if this amendment that will be subsequently proposed implies some sort of an agreement, it might put on one side some other amendments.

The matter in the amendment circulated cannot be raised now.

I move the following amendment:—"In Sub-section (2), line 25, to add a new Sub-section as follows:—

"No action shall lie against any railway company for, or in respect of the loss of or damage to any property entrusted to such railway company for carriage or storage in any case in which such loss or damage was caused by:—

(a) an injury to which this Part of this Act applies, or

(b) a wrongful act for which an application for compensation could be lodged under this Part of this Act.”

The purpose of the amendment is to obviate double litigation with consequential delay and expense, and to ensure that the owner of property damaged or destroyed shall make a claim for compensation, instead of sueing the railway company in the first instance, and then the railway company in turn making a compensation claim.

I desire to raise on this amendment a question of what is termed here, or what might be understood to be a wrongful act, for which application for compensation could be made in this Part of the Act. I refer to the question of the loss of the lives of men—engine drivers and others—who are engaged in the manipulation of the traffic work of the railways, and I would consider it very unfair for the Government, by any agreement made with the railway companies, to relieve the companies who derive revenue on the carriage of goods and fares by passengers from giving right and proper compensation to the men who are carrying the goods and driving the passengers through the country, under present circumstances.

Arguments may be put up against a case for these men, such as have been put up by the President in opposing previous amendments; but, I think, there is no Deputy here, and I would venture to suggest no newspaper editor, or any railway director who may control the policy of such a newspaper editor outside, would say that the very small number of men who are bravely carrying on work on the railways, under such extraordinary circumstances, should be deprived of getting suitable compensation for the risks which they are undertaking. The railway companies, in ordinary circumstances, pay out of the revenue from carriage of goods and from passenger fares, compensation for the men who might be killed in the execution of their duties. I think there is nothing in the present circumstances that should relieve the companies from the obligations which, under normal conditions, would fall upon them, of compensating such men as I refer to. The directors and the managers of the railways, who sit in comfortable seats in very happy surroundings, are, and have been, sending out into the darkness and dangers of the night men like Crawley, of Nenagh, Daly, of Tralee, and the men who were scalded in Ardfert, who would earn for them a suitable revenue, which would enable them to receive a certain dividend, and a reasonable return on their shares. I hope the eloquence of the President, and all his power and influence, will be used with the railway companies, if he has to deal with them again, in seeing that suitable phraseology is inserted into any agreement which may be arrived at, that will enable these men and their dependents to be looked after by the railway companies. It is not a case of where a charge is being thrown upon them by the State. If the State looks upon the carrying on of the railways as an essential public service under present conditions, in dealing with the companies they should make that perfectly clear, and make it clear also that the men who have lost their lives in bravely carrying on such work, or their dependents, should be looked after in a suitable manner.

I think that Deputy Davin has misread or misunderstood this amendment. I do not suppose there is anybody who can have anything but the most profound sympathy with those men who have been carrying on their duties under what are worse than war conditions. The amendment reads:

"No action shall lie against any railway company for, or in respect of the loss of, or damage to, any property entrusted to such railway company for carriage or storage in any case in which such loss or damage was caused by:—

(a) An injury to which this Part of this Act applies; or,

(b) a wrongful act for which an application for compensation could be lodged under this Part of this Act.”

Therefore I do not think it can in any way tend to relieve the railway company from its duty under the Workmen's Compensation Act, or otherwise, to pay compensation to those of its servants who sustain injury of any kind in carrying on the services of the company throughout the country. What I would like the Minister to clear up is this: As I understand it, in law if the consignor or consignee, or the owner of goods that are in the custody of a railway company and which have been destroyed by wrongful acts such as are referred to in this section, so desires, he can take proceedings either against the railway company or under the Malicious Injuries Act against the ratepayers. The ratepayers of the State will be excluded by this Act from all liability to pay consequential damages and those other damages that have been cut out. Therefore, the owner of the goods would, of course, elect to go against the railway company, which would be liable for consequential injury and loss of profit and all the rest of it. Am I right in interpreting this amendment that has been moved by Deputy Duggan as confining the owner of goods that are destroyed while in the custody of the railway company to his remedy as against the State, and thereby confining him to such damages as he may be entitled to under this Act, and to excluding him from the alternative cause of action that he hitherto possessed against the railway company? Reading the section, it appears to me to bear that interpretation. I would like, when the Minister comes to reply, that he would tell us if that is what is meant by the amendment.

That is what is meant to be interpreted by this amendment.

Amendment put and agreed to.
Question put: "That Section 8, as amended, stand part of the Bill."

I move Section 9:—

(1) When assessing the amount of compensation to be awarded to any applicant for compensation under the Criminal Injuries Acts in respect of any injury to which this part of this Act applies, the Judge shall take into consideration the steps taken by the owner of the property, his servants or agents, either before or at the time of the committal of the injury.

(a) To protect the property from any anticipated injury or from any injury which ought to or might reasonably have been anticipated; or

(b) To avoid exposing the property to the risk of injury; or

(c) To resist, prevent, or defeat the committal of the injury;

And the Judge shall, in assessing the amount of such compensation, have regard to the extent to which the injury was, in the opinion of the Judge, caused, facilitated, or affected by the failure to take such steps as aforesaid or by the insufficiency of the steps actually taken.

(2) An applicant for compensation under the Criminal Injuries Acts in respect of an injury to which this Part of this Act applies shall be wholly disentitled to any compensation under those Acts if, in the opinion of the Judge, the applicant was at or about the time the injury was committed

(a) Associated or combined or in league, directly or indirectly, with the person or persons by whom the injury was committed for the committal of that injury, or for the committal of other similar injuries to property; or

(b) A member or helper of or active sympathiser with any association or combination of an unlawful or seditious character by the members of which, or on behalf of which, or for the furtherance of the objects of which the injury was committed; or

(c) A member or helper of or active sympathiser with any organisation engaged in armed opposition to the late Provisional Government of Ireland or the Government of Saorstát Eireann.

I move the following amendment:—"In Sub-section 1, to insert after the word `taken,' the words `or which might reasonably have been taken.' " That amendment speaks for itself.

Amendment put, and agreed to.

I move the following amendment:—In Sub-section 2 to delete the words "in the opinion," and to substitute the words "it is proved in evidence to the satisfaction."

This is more or less verbal. (At this stage Mr. George Nicholls took the Chair). I am not sure whether it has any real value in law. It seems to me the opinion of the judge might have been formed before any evidence was given, and it is rather too loose, and the intention of the amendment is to substitute the words, "it is proved in evidence to the satisfaction of the judge." Whether the opinion of the judge in a matter of this kind is sufficient for lawyers, I do not know; but it would not be sufficient for the average man because it rather suggests an opinion that may have been arrived at from newspaper reading.

I think that I could scarcely accept the amendment in the form in which it is presented, and I am sure the Deputy will appreciate the reason for it. In the first place in a case of this sort the onus would lie upon the State to produce evidence to the satisfaction of the judge that A.B. had continuously harboured or assisted or otherwise helped irregular activity in the locality. Now, it will be seen at once how very difficult that would be, to the extent that it would entail the reversionary disadvantage to any such person giving such evidence in a court. We would consider the point if that would meet Deputy Johnson's view, and see how far it would be possible to make it watertight, both from our point of view, and at the same time fair so that no person will be penalised unjustly, but I think Deputy Johnson will admit having regard to all the circumstances that there are cases in which it would be highly dangerous for a local loyal citizen of the State to give evidence of the kind required to satisfy the judge to disallow the claim.

That makes a rather serious position, because it appears from a statement of the Minister that a judge would be called upon to disallow compensation without evidence of the attitude of the applicant. He is invited to have prejudice as to the character of the applicant, and he is not to be asked in fairness to come to a decision as to whether the applicant was harboured by or associated with or in league with a participant in the destructive campaign; but if he has an opinion formed by the evidence, he is to be almost, as the Minister suggests, prompted by the representatives of the State. That is undoubtedly an unsatisfactory proposition. If a Judge is to be brought into the case at all, then we must safeguard the citizen and the Judiciary from the suggestion that he is going to form opinions without evidence, and that the evidence must be obtainable from both sides. I hope I have misinterpreted the intention of the Minister, but I thought that this wording, "in the opinion of the Judge," was merely rather careless phrasing, and did not intend any difference from what I have sought to make sure of, that it was to be a judgment based upon evidence. If the opinion of the Judge is to be the kind of opinion that any ordinary citizen may hold, based upon common talk, general knowledge, rumour or suggestion of an interested party, then it is not only of no use, but it is very bad, and I hope that the amendment or some variation of the amendment containing its spirit would be inserted in this clause.

I should like to add such little weight as my words may have to the appeal of Deputy Johnson. It is a very dangerous thing to suggest that Judges should act in any matter without evidence. Nothing is more calculated to bring the administration of justice into contempt amongst the people, and a great deal of the feeling throughout this country in the past has been due to the fact that they could not trust those who administered the law to hold an even balance between the citizen and the Government. What I fear is, if those words are not put in, that you may have such a thing as representatives of this State appearing in court and making a more or less inflammatory charge against a claimant unsupported by evidence, and the Judge forming an opinion on that and deciding against the claimant. You would then be back in the same old slough that existed before, and it will be said, "You will get no justice in those courts, and all you have to do is to get someone representing the State against you and your case is gone." It ought to be quite easy to find words that will make it appear that the Judge will only act upon testimony given in the court, and not upon opinions formed outside, and if such words can be found, they certainly ought to be inserted in this place, instead of "the expression of opinion" which is used.

I will consider the case, but I cannot accept the amendment as it is. It may be that we will be able to find words that will suit, but, as I said previously it would be hard to get evidence in particular cases. I think that members know and realise that. Take the case of several people that we know were actively engaged against us, and that we are as sure as we are standing or sitting here in this Dáil that they were so acting, and that they are being harboured or assisted by certain persons who have claims. I have half-a-dozen such names in my mind at the moment, and I am perfectly satisfied from what I know of the cases that I could not produce any evidence in the court, and that these would be unjust decrees, and they would not be entitled to them. What I have in mind is such a possibility. It may not be necessary for the judge to express an opinion at all, and we may be able to get out of it. We will consider the clause. I cannot undertake to have this principle of the Deputy put into it, that is, in order that a person would be safeguarded against being excluded, that we should put up evidence. I cannot undertake that.

You might turn it the other way round by words to this effect, "unless the applicant shall satisfy the judge that he was not."

I had that in my mind.

At this stage An Ceann Comhairle resumed the Chair.

Surely that is not very much of an improvement. The State is going to suggest to the judge that the applicant in its opinion may have had some aunt or uncle, cousin or friend, son or father, associated with this irregular campaign. That is all it has to say. Then you are going to throw the onus of proving his innocence of what is a charge of treason upon the applicant for compensation. It seems to me that that is rather worse than the other. If the question is not raised in any manner the judge is not to pronounce any opinion. But if the suspicion is just created, if a chance word or suggestion is made by the solicitor or counsel for the State, then the onus of proving his innocence comes upon the applicant, and that is impossible. The opinion of the Judge in the matter, according to the clause as it stands, may have been formed six months ago; the man may have been, shall I say, up to June associated with the Four Courts Executive. He may have ceased that association completely since that date. The damage may have been done maliciously to his own property, perhaps, because of that fact; but by virtue of the fact that the Judge formed the opinion that because he was associated in those days he is still associated, then he was not to receive any compensation. One might go further than that—might go right back to earlier days than June, when there was a good deal of doubt as to which side Deputies in this Dáil even were going to take. I urge the Ministry to change their minds upon this question, because the opinion of the Judge ought not to be based upon anything but evidence. If it means simply the evidence of the Minister, or the Minister's agent, to say that they are satisfied, from knowledge that has come to them as to the applicant—even that might be sufficient to decide the Judge. But to ask him to form an opinion without evidence is surely going to destroy any possibility of regaining respect for the courts. I fear that unless the Ministry can give us some better promise than they have done on this question, I shall have to press the amendment.

I would submit respectfully to Deputy Johnson that while the object he has in view is an estimable object, he is trying to secure in contingent matters of life a greater degree of security than is possible at any time. I thoroughly agree with his desire that we should not empower the Judge to have something in his own consciousness and to utilise it as a factor in the framing of his decision. To empower a Judge to act without evidence would, of course, simply be to overthrow the whole administration of the law. But the Deputy, while pursuing that with much eagerness, it seems tome, forgets the exact intention of the clause in the proposed measure. Deputy Johnson, I daresay, would not be willing that the State should bear the cost of compensating the owner of property for loss or injury caused to him by men acting in complicity with him. It is quite conceivable that a man might enter into a criminal conspiracy to destroy his own property, so that he might make a huge claim against the State and profit thereby considerably. That such a contingency can arise must be provided for in the Bill, and there must be some wording with a view to meeting it. The President is of opinion that the representatives of the State can put up a case that, while they are not able to prove—logically prove, or with that degree of legal proof that will bring conviction to everyone— they have reason to believe that this claim comes under one of those categories set out and that it should be incumbent on the claimant to show that his claim is free from any of those deficiencies. Deputy Johnson is alive to the fact that it is so difficult to prove a negative. If I am accused of doing something, or entering into a conspiracy to do something, it is so very hard on me, a private individual, to disprove the allegation. No doubt, as the President puts contra, there are cases where it will be difficult, and might even be contrary to public policy, to produce the evidence available by the State, but it would be difficult to establish that this was a man who ought not to get the compensation that he claims. In the presence of such a practical dilemma as that I would suggest that a practical man might make this compromise, just as I as a plaintiff claiming compensation, and having to make my case, should make my case so complete that it should not be possible for anyone to urge that the thing was done at my instance or at my connivance. I sympathise, no doubt, with the desire of Deputy Johnson in moving the amendment, and I think the President has accepted the idea in it, but I could not agree with Deputy Johnson's last argument. We must, as practical men, try to secure a good way, not by doing any wrong, and we should try to preclude the possibility of wrong as far as possible. But there is the question of public policy to be considered; and where there is, as I know there is, the possibility of this corrupt arrangement being entered into, the State, and those of us who are helping to frame the law in defence of the State, must try to meet that case and provide for it. It may not be possible to have the exact formula, but I think it is a matter for consideration.

The question arises, in the first instance, by what I think was a loose expression. "in the opinion of the Judge," which opinion might have been formed before the hearing of the case.

"In the decision of the judge."

Would the Minister agree to some form like this—that "if the judge is satisfied after hearing both sides," that so and so? Apart from evidence of the kind that would be required to prove the case of loss of property or damage through the collusion of the man concerned, if it is assumed, or if it is provided in this clause that the judge must hear the cases on both sides, that will meet my point. I want to provide against the possibility that the judge is to be empowered to act upon an opinion formed before he has heard the parties.

It is a form like that, or something like that, that I have in mind. I want the onus in particular cases of proving or of answering for their conduct to be placed upon the persons. There are certain cases in which it would not be possible for the State to produce evidence, but which I, and others as well, know that there is as much guilt as on the part of the very persons who burn the house. I have taken down the words, and I will consider the point. I think the Deputy knows actually what is in my mind, and Deputy Fitzgibbon knows also. The words I have taken down by Deputy Johnson are:—"If the judge is satisfied after hearing the evidence of both sides." I have taken that down, and I will consider it in connection with the matter.

I am prepared to withdraw the amendment under the circumstances.

Amendment by leave withdrawn.

I wish to move Amendment 7:—"In Sub-section (2), line 47, to delete the words `directly or indirectly.' "

In supporting this amendment it means practically going over the same ground. I think the words "directly or indirectly" are very loose and vague. There is no direction to the judge. "Indirectly" reminds one of consequential losses. How are you going to define the line between "directly or indirectly?" Surely it is strong enough to say: "associated or combined, or in league with." When you suggest the possibility of indirect association, well a brother's cousin's aunt may be brought in indirectly. A teacher in a school may be brought in indirectly for not having done his duty as a moral teacher. A clergyman, or anyone, might be brought in indirectly, and the Judge might stretch that direction to any extent. I submit that the clause after these three words is quite strong enough—"associated, or combined, or in league with the person or persons by whom the injury was committed."

Take the case of a person who is not associated with or combined with, that is, taking part in the conference, but a person who is carrying messages or anything of that sort. Now, such a person, whose people or whose house has been injured would not be entitled, I take it, under this, to get any such compensation. I do not by any means interpret the wide extension mentioned by Deputy Johnson, to one's relations, unless those relations are as deeply in the plot. What is meant actually by this is that mere relationship in itself would not be sufficient. There must be some sort of direct or indirect activity in connection with the matter.

I am quite sure of what is in the Minister's mind, but I argue that the putting in all these words might well be interpreted by a prejudiced Judge even further than the Minister intends.

I will consider the point regarding the words "directly or indirectly."

Amendment by leave withdrawn.

I formally move Amendment 8.

"In Sub-section (2) to delete clause (b), lines 51 to 55."

I am sorry the onus in the absence of some of my colleagues of supporting some of those amendments has fallen upon me. The object of the deletion proposed is to ensure that the disability will only apply to those who are actually engaged in a treasonable conspiracy, and because we feel that the whole clause is too wide and indefinite. There are many people who have suffered in these recent troubles, who are just as much entitled to compensation as any other persons, but because they have had political opinions, honestly held, differing from those of the majority, they are to be deprived of the rights which the Bill leaves to them. You are practically saying in this that persons who hold opinions—shall I say frankly, Republican opinions—are going to be deprived of any rights to compensation under the Criminal and Malicious Injuries Act. Quite apart from their conduct we are going to deprive them of rights because of opinions. That is the effect of this clause where you say "A member or helper of or active sympathiser with any association or combination of an unlawful or seditious character by the members of which or on behalf of which or for the furtherance of the objects of which the injury was committed," or "the furtherance of the object of which" is the establishment of a Republic. A man is a member of an organisation, or has been a member of an organisation since pre-Treaty days, and it is a Republican organisation; though he dissents from the methods of the cam paign he is a member of the organisation, and despite discord with the political methods of the majority of his colleagues, he is going to be mulcted because of his opinions. Sedition—well, we have sorry memories of what may be brought in under that guise. I think that the object of the Ministry could be attained without trying to bring under a ban people who have retained their membership of organisations, or have been associated in a political sense with the organisations that believe in the objects, which we all believed a year ago—that we ought not to ban them and deprive them of the rights of citizens. I think it is practically imposing a penalty for political opinions which are not shared by the majority, and I would urge that it is not desirable to maintain the clause as it stands, and that it should be deleted.

I would like to make it perfectly clear on behalf of the Ministry that there was no intention whatever of penalising anyone who holds Republican opinions or whose activities were confined to what might be called constitutional Republican agitation. These are not our concern; they are welcome to do as much as they like. Nor is it intended to interfere with persons because of membership of Sinn Fein. The only case where we draw the line is at persons who are either directly or indirectly participants in such activity as leads to destruction of property, or to the danger of the person, and so on. If any undertaking were to be accepted I would undertake, on behalf of the Ministry, to see that the State Solicitor would certainly give instruction not to interfere with anything in the nature of constitutional agitation. I take it we are all agreed that there can be no compounding with people who are out for destruction, and that is the only object we have in view. We have stated time after time, and I state it again, that if they refrain from that particular form of activity there is plenty of field for other operations, and a much more favourable field.

I suggest to the President, with great respect, that if he reads the next sub-clause he will find that the objects he has specified are met by the application of sub-clause "a” and “c,” and that they cover the ground that is really equitable and necessary.

If my information is correct, and I can produce evidence to show that it is correct, there are certain organisations masquerading under Constitutional names, and in respect of which such activity as injury to, and destruction of property, and so on, have been committed under the guise of, and under the appearances that they were philanthropic bodies. In one case we had a raid on what presumably was the most desirable institution, and from the correspondence that was seized it was shown that that was simply a screen for this other work. I think that Deputies may take it that where the Executive Officers enter an objection there will be good ground for doing so, and that it will not be merely suspicion, or to meet the wishes of some persons that have a spleen against the applicant for compensation.

I support what Deputy Magennis says that Sub-section (c) certainly covers those cases to which the President has referred. I would like to draw his attention to the fact that no matter what instructions may be given by the State Solicitor, or what the intention of the Ministry may be, when this becomes an Act, it is on that Act that the Judge will proceed, and not upon the intention of the Ministry or the instructions of the State Solicitor. As a matter of fact there may be other people opposed, beside the State Solicitor, appearing in the Court, for local bodies, and they might make a suggestion, so that it might not be at all at the discretion of the State Solicitor. If this Bill passes as it stands it is an invitation to the local bodies, or to any person who has a locus standi in the Court, to make a suggestion as to the associations of the applicant, and, quite apart from the will of the Ministry, the Judge will base his judgment presumably upon the Act. Now, I submit that the two clauses “a” and “c” cover every reasonable ground on which the claimant should be disqualified; “b,” it will be noted, speaks of a member or helper of an organisation that joins in the furtherance of objects of which the injury was committed. The objects of an organisation may be commendable; the methods may be very——

They may be very much the other way, but if certain things are done in furtherance of objects which do not commend themselves to the Judge hearing the case, then the applicant may be deprived of his rights under the Bill. I would again urge that "a” and “c” cover all conceivable cases.

The point that Deputy Johnson has made is the point that I had intended speaking on when he arose to address the Dáil. I mention it now because I think it could be carried even further. If this sub-section remains part of the Bill, and the Bill becomes an Act, it is still within the power of the Judge, on his own initiative, to satisfy himself that the applicant is not such a person, is not, say, for example, a Constitutional Republican. In that case, and on his own motion, he may find that the applicant is debarred from such compensation. The President has himself distinctly stated that it is not the intention of the Ministry that the applicant should be debarred. Therefore, I urge that "a” and “c” meet the case quite adequately without the introduction of the words in “b” that are so very dangerous in their intention and application.

I will consider the question of taking out Sub-section "b” when the next stage of the Bill is reached.

In that case I beg to say that I withdraw my amendment.

Amendment, by leave, withdrawn.
Question put: "That Section 9, as amended, stand part of the Bill."