I move Section 14.
DAIL IN COMMITTEE. - CRIMINAL AND MALICIOUS INJURIES (AMENDMENT) BILL.—COMMITTEE (RESUMED).
14. — (1) Any person who claims to have suffered loss by a wrongful act to which this section applies may at any time within three months after the passing of this Act lodge an application for compensation under the Criminal Injuries Acts in respect of such loss.
(2) The Judge shall hear and inquire into every application lodged under this section, and if he is not satisfied that the applicant has suffered loss by a wrongful act to which this section applies he shall dismiss the application upon such terms as to costs as appear to him to be just.
(3) If the Judge, after hearing and inquiring into an application lodged under this section is satisfied that the applicant has suffered loss by a wrongful act to which this section applies, he shall not make any decree on such application, but in lieu thereof he shall report in writing to the Minister for Finance —
(a) that the applicant has suffered loss by a wrongful act to which this section applies;
(b) the sum which would fairly compensate the applicant for such loss;
(c) whether the applicant was insured against such loss, and, if so, the particulars of such insurance.
(4) The Judge shall fix the sum mentioned in clause (b) of the preceding sub-section on the same principles as the compensation for an injury to which this Part of this Act applies is to be fixed under the Criminal Injuries Acts and this Act, and shall state in his report whether in his opinion any, and if so what, reinstatement condition should be attached to such sum.
(5) The Judge may, at the request of the applicant at any stage of the proceedings, treat an application lodged under this section as an application under the Criminal Injuries Acts for compensation for an injury to which this Part of this Act applies, and deal with it accordingly.
(6) The Judge may, at the request of the applicant at any stage of the proceedings, treat an application under the Criminal Injuries Acts for compensation for an injury to which this Part of this Act applies as an application lodged under this section, and deal with it accordingly.
(7) Nothing in this section shall confer on any person any right to compensation under the Criminal Injuries Acts or otherwise for any loss suffered by a wrongful act to which this section applies.
(8) This section applies to any wrongful act which fulfils all the following conditions, viz.:—
(a) the wrongful act must consist of the taking away of chattels without the consent of the owner;
(b) the chattels must not be—
(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.
(c) the taking away must have occurred after the 11th day of July, 1921, and on or before the 6th day of February, 1923;
(d) the chattels must have been taken away by a person or persons—
(i) engaged in or purporting to act in the name or on behalf of any combination or conspiracy for the overthrow of the late Provisional Government of Ireland or of the Government of Saorstát Eireann, or
(ii) belonging to or acting or purporting to act on behalf of any unlawful or seditious association or
(iii) requisitioning or purporting to requisition the chattels for the use of or for consumption by any organisation engaged in armed resistance to the Provisional Government of Ireland or to the Government of Saorstát Eireann.
(9) This section also applies to any wrongful act consisting of the destruction of or damage to any property which occurred after the 11th day of July, 1921, and on or before the 6th day of February, 1923, in the course of or as an incident in a conflict between the armed forces of the Provisional Government of Ireland or the Government of Saorstát Eireann and any persons offering armed resistance to such forces
(10) All the provisions of the Criminal Injuries Acts and of Parts II. and III. of this Act so far as the same are not inconsistent with the provisions of this section shall apply to any application lodged under this section as fully as if such application was an application for compensation under the Criminal Injuries Acts in respect of an injury to which this Part of this Act applies.
Before we reach the amendment I wonder would it be too much to ask the President for some explanation of what this Section intends, for, I confess that having read it and re-read it, with some care, I am still in the dark as to the real purpose of it. The Section appears to contemplate compensation for goods stolen and for goods destroyed, in cases where there would be no right of compensation under the Criminal and Malicious Injuries Act; and, having in contemplation these two classes of damage, it sets up a very peculiar and somewhat cumbrous machinery. The Dáil will see that what it does in respect of these two injuries is to authorise the Judge to inquire and report. What happens then? When the Judge has reported the matter apparently comes before the Minister, and there the Section stops. A man whose case has been reported on does not acquire any right under this Section. I think the effect of the amendment on the paper is, that there will be no appeal from the Judge's report, and yet the Section is so drawn that, as it stands, without the amendment to be proposed on behalf of the Ministry, it appears both to give, and to take away, the right of appeal. The Section produces this curious result when contrasted with other parts of the Bill, that, whereas if you apply under an earlier part of the Bill, you will have a right of appeal from the Judge's decision, if you apply under this part of the Bill, you will apparently have no right of appeal. And yet, Sub-section 5 of Section 14 says that the Judge, at the request of the applicant, may treat the application under the Criminal and Malicious Injuries Act as an application under this Act. The next Section gives a converse case, so that the Judge would be in the position to grant the right of appeal, though the application had started under this Section. I would ask the Minister to tell us what is the class of damage contemplated by this Act for which this special machinery is required, and why this different procedure should be adopted; why the right of appeal should be taken away; why the Judge should be merely entitled to make a report not binding upon anybody; why when the Minister gets a report he should not be compelled to act upon it, or to act upon it in the absence of good reason against it. As it stands, the Section appears to me to give no right whatever for the applicant to come within it. Why should the Judge not be entitled to make a decree here as in other cases, and why should the Minister's rights in the matter, when the Judge's decision comes before him, not be definitely defined in the Bill? I ask him in all seriousness for an explanation because I frankly do not see what the purpose of this special machinery is. I understand that Sub-section 9 is to apply to military damage, and even there I cannot see why a different procedure should be adopted from that under the Criminal and Malicious Injuries Act. I would draw the attention of the President to so much of the Section as deals with destruction that would apparently apply only, or almost exclusively, to damage done by our own military people. I think the President will agree with that, that so much of the Section as deals with destruction when you remove the word "wrongfully," which is in it, will apply, practically entirely and exclusively, to damage done by the Army. That being so, the man damaged by the Army will have no right of appeal, whereas the man damaged by the Irregulars can bring himself within the Criminal and Malicious Injuries Act, and within this Section, which gives him the right of appeal. But the man damaged by the Army will have no right of appeal under the Bill, and the Minister may, or may not, act on the Judge's report in these cases. I do not know whether the Minister's attention has been drawn to the fact that he is putting two classes of cases into two different categories without any apparent reason for so doing. If he accepts the view that damage done by the Army should come under the same heading as damage done by the Irregulars, nine-tenths of it will come under the Criminal and Malicious Injuries Acts properly so called. This Section, so far as it deals with destruction to property, is discriminating against the unfortunate man who has been damaged in the course of operations by the Army. I ask that the two cases should be put on the one similar logical basis.
This Section covers three classes of cases. First, those who possibly bring a claim under this Section are not, perhaps, availing of the advantages derived from the other Sections; secondly, those who have no legal authority to make claims under the present law — dividing that particular order into two classes — those whose property has been damaged or destroyed by the military, and those whose property has been removed, comman deered, seized, or looted, as it is generally called. Now, a good deal of the damage that has been occasioned is attributable to loot, and the claims in connection with that particular head are enormous. They can only be dealt with in an ex-gratia way. If the sum be out of all proportion it can only be met in proportion. If it be a reasonable sum one that we can afford to pay, we are prepared to pay it. But it is impossible at this moment, even after the passing of the Act, to estimate what particular proportion it is possible to pay. Under the Section that the Deputy refers to — I think it is Section 5 or 6 — a person who, through bringing his claim under this particular Section might damage his case to some extent, has the right, upon making application to the Judge, to have it so construed under the Criminal and Malicious Injuries Act. If, on the other hand, it is covered in other directions in which he would have no legal claim, in certain cases where property was damaged by the National troops in the course of military operations, there is no claim there at the present moment against the local authority or against the State. These cases are being considered. I take it that any recommendation made to the Minister for Finance in these cases would be accepted in the same way as we would accept a decree of the Judge given in the ordinary way under the Criminal and Malicious Injury Acts In other words, where there has been loss we are not going to discriminate between the person who has a legal remedy and no rights and the person who had no legal remedy and rights.
I am much obliged for the Minister's explanation. I would like to ask the Minister so to amend the Section as to secure to a man whose property has been damaged by our own Army the same rights as that man would have if his property were damaged by the Irregulars. As the Section stands all a man gets is not a right, but the hope of an ex-gratia payment. He is put in a worse position by the Section because the damage is done by our own Army. One other matter. The Minister spoke of Sub-sections (5) and (6) as giving to the applicant the right to apply either under the ordinary criminal injuries procedure or under this Sub-section. But is not any benefit so given to the applicant taken away by the succeeding Sub-section (7), which says:—“Nothing in his section shall confer on any person any right to compensation under the Criminal Injuries Acts or otherwise for any loss suffered by a wrongful act to which this section applies?”
One thing more. So far as looting is concerned I do not dispute the propriety of treating compensation for looting as a matter for ex-gratia consideration on the part of the Minister. I think it does stand on a separate footing, but where you are dealing with actual destruction of property I do not think that the ex-gratia principle is a right one.
Well, it has worked, so far as I know, fairly well in the case of Dublin, as far as the damage done there in 1916 is concerned, and there is no reason why it should not work equally well in the present case. Those people had no more than ordinary ex-gratia grants. I think that if anything they will get more rather than less through this particular Section than they had at that time. We do not wish to give a legal right to persons who had no legal right. We must consider the Bill as a whole. Concentration upon a particular Section and showing its weaknesses puts out the balance with regard to the rest of it. The whole sum and substance of this Bill is that in certain cases we have to restrict legal rights; in other cases, where there were rights and equitable claims and no legal remedy, we have to give a legal remedy. Where it is concerned with looting we took that into consideration; but to give a legal right in a case of that sort would be a very great danger. We excluded consequential loss in all cases. An examination of any particular section shows at once, particularly if it was examined under a microscope, very many defects. It is not fair to examine a measure of this sort in that manner. The whole of the Bill ought to come under review, and its general tone ought to be examined rather than particular sections.
I beg to move Amendment 10. To add after sub-section (3) (c):—
(d) “In any case where loss by wrongful act is in the opinion of the Judge, attributable to the members of any Trades Union, nothing in this Act shall prevent him from giving a decree against the funds of such Trades Union for an amount as set out in Clause `(b)' of this sub-section.”
When I was drafting that amendment I tried to see under what part of the Act I could put in such an amendment. I thought the only place I could put it in was under this Clause. I do not see where else it could go. The object of this amendment is to help the Ministry. The Minister for Finance assumes liability under this Bill for the damage done in the national struggle, but what I want to point out is that there were several occurrences in localised centres which had nothing to do with the Nation's life; they were of another character altogether, and it seems very hard that the Nation or the Minister for Finance should be asked to pay for damage which arose, not out of the national struggle, but from local incidents in the course of our normal life. The object of this amendment is to prevent that. The amendment merely wishes to give power to the Judge, having regard to the circumstances of a particular case, to make a decree against the funds of any Trades Union or organisation which, in his opinion, might be guilty of the act for which the compensation is claimed. That is the object of it. It will afford relief to the Treasury, and it may stop some of these acts, which we all regret, and which are known to be merely incidents in our normal life. Now, with regard to the point which may be raised against this amendment, that I am seeking to make an organisation as a whole suffer for the acts of one man or two men, I desire to say that I am merely applying the principle in that case on which the Malicious Injury Bill is hinged. I never agreed with that principle at all. The principle of the Malicious Injury Bill is that the community is liable for and can be mulcted in damages for loss caused by one individual. Seeing that the Ministry accepts that principle, and that it is the law of the land, I wish to apply that principle in making the Union or organisation liable for the acts of the individual members. I beg to move the amendment.
The arguments that Deputy Wilson has adduced in favour of this amendment are not the concern of the Dáil. I take it that the Dáil is concerned with the amendment, and I propose to suggest to Deputy Wilson that if he will add certain words to his amendment we shall not oppose it. The words I suggest should be added after the words "Trade Union" are "Association of employers, political, social, or religious organisations or communities." If the principle which Deputy Wilson has enunciated is applicable in the one case, surely it is applicable in them all, and no harm will be done by the insertion of this amendment, and certainly no good. If the Ministry agrees to overload its Bill with clauses of this kind and to add five minutes to the printers' time, we shall not object. I am sure that Deputy Wilson is a fair-minded man, and that he is not going to seek to mulct the Trade Union in the responsibility for any act of any of its members and leave free of responsibility an association of employers—say, the Farmers' Union — for any act of any member of the Farmers' Union in any part of the country of any kind, or of any member of any political organisation. I take it that Deputy Wilson, being a fair-minded man, will apply the principle all round, and will see that if a man who commits an offence is a member of, say, the Sinn Fein Organisation or the new National Party, that the funds of that party will be liable for the conduct of any of its members, and that the same thing will apply to any other social or religious organisation or community. It is a fair offer. If Deputy Wilson is prepared to accept that slight enlargement of the amendment and that further application of the principle, I will be pleased to support the amendment, if he thinks it is worth while.
I take it that the Minister for Finance may hesitate to accept Deputy Wilson's amendment. Deputy Johnson made play with it skilfully, and suggested the addition of certain words. He might have made a better suggestion. He might have suggested, for instance, that if Deputy Wilson inserted the words "Wrongful act done in the prosecution of a dispute" it would be an improvement to his amendment. On the general question as to whether the State will not have to take notice of damage occurring where a conspiracy can be well proved to exist, and ask this Dáil to decide that the cost of that damage or a great portion of it shall be levied from people who can be proved to have been parties to that conspiracy — that may become a very relevant question here in the near future. I do not wish to concentrate in a particular manner on damage arising out of a labour dispute. Damage, as we know, does arise occasionally, and, unfortunately, more frequently recently, out of labour disputes. It can be attributed, no doubt, to the general bad example given in the country within the past year, but if we are not to finish with a dead level of ashes in this country the State may be called upon to decide that parties to the conspiracy — parties to a conspiracy who can be well proved to be such — should be broken to the last penny before the general body of other ratepayers or taxpayers should be asked to put their hands in their pockets to pay for such damage.
Now, in this country, in two provinces in particular, in the West and in the South, people have gone in in a most light-hearted way and burned their neighbour's property to the ground, and for the most part they were people who, as a man said to me quite recently, would lie awake for a week fretting if a hen laid out on them. They were that kind of person, but they went in and burned their neighbour down to the ground. They stole his chattel property, plundered it, and stole his stock after he left the district. There are houses in the South and West crammed full of loot. Some time ago a case was attempted to be established that these people whose cattle were seized in the West were poor, innocent people, that the cattle strayed in, and that the people went to the place and took certain articles they found there. After the cattle were seized an officer in charge of the unit that seized them visited the owners to make to them an intelligent forecast of what the consequences would be if any attempt were made at a counter move, and he found that certain houses he visited were crammed full of loot. One house he reported as being more like Tutankhamen's tomb than anything he ever heard of. There were hens roosting on valuable oil paintings, there were silver candlesticks and valuable prieu dieux plundered out of the house of a neighbour that had been burned. That state of affairs cannot go on indefinitely in a country. If there is to be wholesale plunder of that kind, if there is to be light-hearted burning of the material wealth of the country by people who would faint if a hen laid out on them, then we have got to consider whether the incidence of compensation will not have to lie more heavily on the people who do the damage. That is a decision we may be forced to come to. It is not a decision we will come to hastily, or in an afternoon's discussion on an amendment, but we may be forced to come to that decision — whether it is fair or reasonable to mulct the taxpayers and ratepayers of the country and leave the people who do the damage, and who are well known to have done it, merely paying a proportional share.
Amendment put and negatived.
The following amendment stood in the name of Cathal O'Shannon:— In Sub-section (4), line 50. to add at the end of Sub-section, "and whether in his opinion any, and if so what, relief provision should be attached to such sum."
I ask leave to withdraw this amendment, as it would have been consequential on an amendment which has been defeated.
Amendment, by leave, withdrawn.
I move the following amendment:—
In Sub-section (7), line 4, to insert after the word "applies" a new sub-section as follows:—
"(8) No appeal shall lie either to the Judge of Assize or by way of case stated or otherwise howsoever from any dismiss of an application under this section or from any report made by the Judge on any such application."
The Judge has merely power to report, and he does not come to a decision. The only circumstances under which he can give a decision are where he decides that the application does not come within the terms of the section, in which case he dismisses it. Otherwise he does not give a decision, but reports to the Minister for Finance, and in that case it is obvious that there should not be an appeal.
I do not see much objection to this amendment, so far as it relates to loot, but it relates to something else. The amendment as it stands would prohibit any appeal from the report of the Judge of a claim for compensation for damage done by the Army. Is that intended? Is there any reason why that particular damage should be on a different footing to damage done by the Irregulars? There may be some reason, but I cannot discover it. I would ask that the two sorts of damage be put on the same footing.
Amendment put and declared, carried.
I beg to move the following amendment:—"In Sub-section (8) (a), line 8, to add at the end the words, “or in injury to the person, whether the injury was intentional or arose out of or in the course of an injury to property, or the commission of a wrongful act, as defined by this section.”
This brings in injuries to the person in this particular case. That was not our intention. I expect to have ready for distribution to all the members, this evening, the terms of reference to the tribunal we intend to set up. It is being typed at the present moment. Bringing in that particular item here leaves us open to have injuries to the person the subject of consideration by 27 or 28 different tribunals all over the country. Now, while Judges are, I suppose, people who pay particular attention to their judgments, it is scarcely likely that an exact amount would be decreed in the same class of case all over the country, and our intention was to have one central tribunal dealing with this, and doing no other work in connection with the Malicious Injuries Act except personal injury. If that were the intention of the Deputy who moved the amendment, I think when he sees the terms of reference and the names of the tribunal he will be satisfied that our idea, of having a central body to deal with this matter is the better one.
With that assurance I desire to withdraw the amendment.
Amendment, by leave, withdrawn.
I move the following amendment:—"In Sub-section (8) (b) (ii), line 14, to add after the word `country' the words `other than any such coins, notes or currency taken away from the premises of a bank.' ” This matter has already been the subject of a debate in the Dáil, and I think it is generally accepted that this exception is required. There are reasons for it, and one is that money in a bank is part of the stock-in-trade, the same as in (b); the second is that in the case of a bank it is possible to obtain proof that the money was actually taken away, whereas in the case of a private individual it would be difficult to obtain any kind of satisfactory proof.
Amendment agreed to.
The following amendments were on the Orders of the Day:—
(15) "In Sub-section (8) (c), line 17, to delete the words `the taking away, and substitute the words `the wrongful act.' ”— Thomas MacEoin, Domhnall O Muirgheasa.
(16) "In Sub-section (8) (d), line 20, to delete the words `the chattels must have been taken away,' and substitute the words `the wrongful act must have been committed.' ”— Thomas MacEoin, Domhnall O Muirgheasa.
Amendments 15 and 16 fall consequential on Amendment 13.
These amendments are, I suggest, a simple correction of the English in the Bill. Sub-section 8 says: "This section applies to any wrongful act which fulfils all the following conditions," and (c) refers to the “taking away.” That is not a definition of a “wrongful act.” Surely the substitution of “wrongful act” for “taking away” is a proper correction.
The amendments were put down consequentially. I think the use of the words "wrongful act" does specify the requirements of the section better than "taking away." It is a matter for the Minister.
The amendments are accepted.
Amendments agreed to.
I move the following amendment:—"In Sub-section (8) (d) (1), line 22, to insert after the word `acts' the words `or who might reasonably be presumed to have been acting.' ” This amendment is inserted owing to the difficulty there would be in giving absolute proof of a person being engaged in a conspiracy.
Amendment agreed to.
I would like to say a few words in reference to Sub-section 9, to which, I see, no amendment is down. I would very strongly urge the Minister and his advisers to consider whether it would not be an advantage to make a separate section of that Sub-section, or at all events, to take it out of the Looting Clause. At present, for no apparent reason, that Section, which will in the main apply to damage done by the military, is assimilated with the Looting Clause. I think it should be a separate section, and should be assimilated with the ordinary criminal injuries procedure. I understand the Ministry will themselves bring in an amendment to make it quite clear that this Sub-section does cover military damage, and that they will do so on the next stage of the Bill. When they do, I would strongly urge that they take the sub-section out of a section into which it fits very badly.
Question put:—"That Section 14, as amended, stand part of the Bill."
Agreed.
SECTION 15.
I move Section 15, which reads:—
This Part of this Act applies to all injuries to property which occurred after the 11th day of July, 1921, and on or before, but not after, the 6th day of February, 1923, and in respect of which compensation could have been given under the Criminal Injuries Acts if this Act had not been passed.
The period set out here is from the 11th July, 1921, to on or before, but not after the 6th February, 1923. The Section means that as far as injuries to property are concerned, after the 6th February, all claims in respect of the destruction of property would lie against the local authority in each area. That is, that the Criminal and Malicious Injuries Acts stand as they stood before the Act of 1919 was passed. It is proposed to repeal that in its main and penal provisions.
Amendment 18 (to delete the words, "to property"— Tomás MacEoin, Domhnall O Muirgheasa), is not in order because it purports to increase the scope of the Bill and to allow compensation for injuries other than injuries to property. Amendment 19 — (to delete all the words after "1921"— Risteárd MacLiam), is also out of order, because it purports to increase the period from the 6th February to some other date, and that is not provided for in the Money Resolution.
I would ask the President to again consider the question of the date. I know, of course, that in this Bill the date is fixed by the Finance Resolution, but I would ask him to consider the question of leaving the date open, or, at least, to prolong it, because we feel that in the country conditions are not so settled as that we can in a local area bear the burden of the Criminal Injuries Act at the present moment.
Consideration of any question like that depends very largely upon the number and extent of the requests from various parts of the Dáil. It is scarcely fair to ask me to consider that on the request of only one Deputy. We were fully determined upon fixing the date on the 6th February, and it is a matter now for Deputies to make very strong representations. Very, very strong representations would require to be made before we would consider the question of the alteration of the date.
That indication is important, as it shows that the door is not bolted and barred.
It is, as it is there.
In the Bill, true; but I understand there are suggestions abroad about making further charges upon the public funds, that further resolutions will have to be passed by the Dáil empowering the expenditure out of public funds of certain moneys, and that such resolutions will have again to be brought forward. In that case, though the Bill, so far, may close the door on 1921, it is not yet barred and bolted, or, as I am prompted, not yet hermetically sealed. The case for fixing the date, as it has been fixed, has not yet been made. We have been told broadly that there is no money. If there is no money, it does not matter whether the door is closed or not. I think, before the Minister finally and absolutely makes up his mind that it cannot be done with the responsibility of the Ministry, he should reconsider the question of the date. A date, I presume, has to be fixed, or will eventually have to be fixed; but so far we have not seen any reason why one particular date should be fixed any more than another, except that it happens to be the date on which the Bill was introduced. I will support Deputy Wilson in this respect, as in the last, in asking the Minister to reconsider the position in regard to the date, and, before finally deciding against extending the period, to submit some argument and explanation as to why that particular date should be fixed.
I should like to add my voice to the voices already expressed. The effect of your ruling, which is, as usual, right and proper according to our procedure, is to convert votes that might be "Tá" into votes that will be "Níl," because we vote against this clause instead of voting for amendment, and the effect will be the same. I do not see why, in respect of the particular item of the 6th February, the 6th February should be chosen as a mystic and irrevocable date. Why is compensation permissable prior to February 6th, because of certain liabilities and responsibilities the Government has undertaken, and which, owing to the circumstances of the time, it has not been able to acquit itself of? No one blames it, but there is the fact that certain responsibilities have been undertaken. Those responsibilities have not been discharged — we hope they soon will be — and, therefore, the public at large are responsible for compensation for injuries caused prior to February 6th, 1923. I am not aware that those responsibilities ceased on February 6th. Whatever was a good argument prior to February 6th was a good argument after February 6th. If people are entitled to compensation because their goods were destroyed, when they might reasonably expect a certain amount of security, before February 6th, why, on February 7th let us say, is the situation so mysteriously changed in respect of those fundamental essentials on which this Bill is based? I think the date will have, eventually, to be extended. If it is not extended in this Act, there will have to be some subsequent Act undertaking those responsibilities, because it is not possible to disacquit a Government of them. I am opposed to this section in the first instance, therefore, because it states February 6th, and, in the second instance, I am opposed to it because it restricts all injury to property, and therefore places property at a higher value than human life. The effect practically, in respect of the second objection I have to this section as a whole, is that if the house of a citizen of this country is attacked at night, and he makes an instant surrender of his property and decamps, he will get his compensation, but let him attempt to defend it, and let that defence cost him his life, then there will be no compensation, even though he is successful in saving his property at the cost of his life. Those of his people who look to him for their maintenance will get no compensation in respect of the dead man. I think that both the essential factors that underlie this section are inequitable and wrong, and I imagine, from what has already been said, that it is impossible to expect that the Ministry will change so much of it as restricts compensation to property. I feel it may be possible to get an extension of the date, or to get that date put aside and left over for some subsequent party to decide. A great deal of attention has been drawn to both these points in the public Press and elsewhere. There has been a great deal of feeling expressed with regard to both these matters, and it is right that they be expressed here. I think there is a substantial body of opinion in this Dáil and in this country which, on both those matters, feels that the Bill is inequitable with regard to the fixing of some mysterious date beyond which compensation will not be given for injury to property, and because compensation will not be given for other than injury to property, even though it might happen that a man, in defence of his property, may lose his life.
Would it be possible for the Minister to introduce a clause into this section putting it within the power of the Dáil to extend the date by resolution — to insert a clause into the measure giving the Dáil power by resolution to change the date?
I think you would require legislation to extend it.
I have to say, sir, that local bodies have not appealed for an extension of the date in general, and I do not say that now for the purpose of giving them an opportunity of doing it, because we are not going to consider the continuous extension, or anything of that sort. I have read a good many articles in the Press about this business. I have not been much struck by the Deputy's question as to why we fixed the 6th— why we did not fix the 5th or the 7th. I presume one could put a good many questions to the Deputy as to why he did not get married the day before he got married or the day after, or why he did not postpone it. There are many citizens who would wish now that they had never got married. The fact is that one must fix a date, somebody must fix a date, sometime or another, for something, and we fixed as the date for this the date of the introduction of the Bill. If the Deputy would have looked up the resolution of the 30th of September, he would have found that it was stated there that while local authorities could not be expected to bear the whole burden, certainly they should not escape a portion of it, and if he will look up the Press reports — certainly one section of the Press — he will find endless shrieks whenever the liability is placed on the local authority. Why? Because it has to be paid there, and the particular people who are agitating against this do not want to pay the cost of this Bill. They do not want to pay it; they want to owe the money, and not to pay it; at least I have not seen any indication of any help towards the Ministry in respect of the payment. People think there is a surplus out of which this country will pay. The Deputy who is a star artist, I am sure, in financial matters, should be of assistance to the Ministry in this matter, because I am sure he realises the necessity of showing the country's form in matters financial just now in the very beginning of our career. No indication has been given to me as to where the money is to come from to pay. If it goes on the Local Authorities certainly it will be felt immediately, and there will be a little more than simple acquiesence in all the acts of aggression and outrage, and all the rest of it that are being committed. Now, as regards the other thing mentioned by the Deputy, that a man is compensated for the loss of his property, and is not compensated if he defends his property with his life, the Acts of 1919 and of 1920 were both looked upon as penal and oppressive and coercive. Was it because they compensated mainly members of the Crown Forces at that time, or their supporters, in this country, or was it because they placed upon the backs of local authorities too much in the way of a liability? If it were wrong then, is it not wrong now? How had you a right at that time to tell local authorities not to impose such a liability, not to bear it, and so on, if now you are accepting it in principle and simply saying. "I agree that these people should be compensated, but I am damned if I strike a penny in the £ on the rates to pay them."
The President has under-stated the case for the counties. He says that the councils will not have to pay anything, whereas we agreed yesterday to this 6d. in the £ for five years on the local rates towards finding finances for these damages. We pay 6d. in the £ and, therefore, having regard to that fact, he should agree to prolong the date of this Bill. I believe myself in the country, in the particular area that I come from, had we to pay our own malicious injuries cases we would not have to pay 6d. in the £ at all. Therefore, we are being mulcted because we are good, peaceful subjects, and on top of that we will have to pay this 6d. in the £, from the 6th February.
I would like to answer briefly the two questions the President has put to me. One touches the personal matter of the date on which I got married. Well, in so far as that is relevant to the clause — and to a certain extent it is relevant to the clause — I would like to state that the date here — the equivalent date to that very happy event in my life — is the 11th of July, 1921. I have not yet stated the date on which I shall cease to get married, and that is the objection that I have — that you are stating here a date on which this Act and the provisions of this Act cease to have effect, not when they begin to have effect. That is my objection. The second point is with regard to whether it were or were not right for us to have said in 1919 that it was wrong to pay personal damages to certain persons who were killed in the course of the war that was then being waged. I stated at the time that I thought it was wrong, and I adhere to that decision; and the reason that it was wrong involved the moral position of the country, who put their agents in here and exposed them to that danger. On no other ground have I heard that kind of compensation complained of at the time. It was only because they came in here from an alien Power and incurred certain dangers, and this was in the course of the dangers to which they were exposed. The case now is entirely different. It is a case where a citizen of this State, undertaking responsibility as a citizen and defending his property and losing his life, whether that family should be deprived of compensation; whereas, if he had hoisted the white flag and cut and run, compensation would have been secured.
I did not think the question of personal injuries would arise in this section; but because it has been discussed, I should like to call attention to a particular case illustrative of the hardships that may be involved if there is no means by which compensation for personal injuries can be secured.
Might I intervene for a moment? On more than one occasion that statement has been made. That statement is wrong. It is wrong, certainly, to the knowledge of the Press, which has circulated it, and it certainly ought to be wrong to the knowledge of the Deputy, in view of the statements I have mentioned.
I would like to say, certainly, that I would be the last person here to make even a suggestion of this kind if it is wrong, and I raise this point and I cite this instance rather for the purpose of being informed in this matter than for the point of bringing in anything in the nature of useless criticism. This particular instance may possibly give the Minister an opportunity of informing us, who are ignorant, exactly as to where we stand. A particular instance I wish to cite in connection with it has reference to a young lady in the county of Kilkenny, who one evening in May last was returning home, and there was an irruption of Irregulars into the city, and hostilitles ensued between them and the National forces. This young lady was shot in the thigh, which had subsequently to be amputated, with the result that her prospects in life were absolutely finished. If she has no means of being compensated, she will be dependent upon the bounty of her relatives for the rest of her life. I cite this case because I think it is one of a most pathetic nature, and one which shows that, although the resources of the nation will be strained in these matters, there will be instances which really necessitate some means by which people who have suffered such terrible calamities as this shall be given some means to enable them to earn their livelihood or to exist. It would probably be a more humane act to have killed that young lady outright than to have crippled her for life and leave her practically a pauper dependent on the bounty of her relatives. I wonder is there any means by which such instances can be considered? I shall be glad if my intervention here will give the Minister for Finance an opportunity of putting me right or informing me exactly as to how the matter stands.
The general question about personal injuries is dealt with in the next section. As I said before, I have the terms of reference. They are being typed, and I have got some of them here, and I will announce them to the Dáil when we get to Section 16. With regard to what Deputy Figgis has said about the date, and Deputy Wilson about the 6d. in the £ which is being assessed, that is to be spent locally to repair the damage done by the ratepayers' sons and daughters on their own roads and bridges, so that it is scarcely a contribution that would have been saved in the ordinary way, whether we brought in this Bill or not. It was their liability. It is certainly the smallest contribution that local authorities could be called upon to pay in respect of the damage that has been done. I have cited instances here in the Dáil before, in which it is obvious to everyone that local people, who ought to have a higher sense of their responsibilities, were responsible for a great deal of the damage done throughout the country. I think that will be admitted. It is also known that for three or four years, from 1920, I should say, to 1923, no local authority—or very few—has struck any rate for criminal and malicious injuries. No rate at all has been struck. Deputy O'Brien and Deputy Byrne know that is a sort of concurrent rate. It used not amount in the old days to very much, but every other year, at any rate, a sum of one penny or three halfpence, or one halfpenny in the city of Dublin, at all events, was put in to pay for this damage. For three years there has been no such imposition. We know well—apart altogether from any military activity that goes on — that there has been actual malicious damage done. Now, that contribution of the sixpence will total, I am sure, upon the local authorities, for the five years, £1,250,000. Is not that a relatively small proportion of the ultimate cost? And it must be remembered that we do not estimate that sum of money to repair the damage. Much less would do — very much less. But we have in mind the improvement of these roads, necessitated by the fact that for some time past there has been considerable neglect in the repair of them, and that they really require such an expenditure, so that the contribution in that particular case is scarcely one that can be grumbled at. Nobody ever thought it would be as small as that. Now, as regards the date, it was generally anticipated after the last debate here, I think in September, that a share of the cost would be borne by the local authorities, and we know they were under the impression that they would be called upon to bear a certain proportion of the damage. Now, they are not asked to bear that, and while the Ministry will consider the matter of the extension of the date, I am not prepared to hold out much hope about the extension of the date. There may be people at the present operating against the country whose parents are ratepayers, and who are probably benefiting by these particular activities. It must be brought home to them in more ways than one what their liability in these instances are after a certain date, whether we fix upon the first day in March or not. I would not be inclined to fix any future date, but we are considering it. But if, after a certain date, it is known in any County that a particular individual or a number of individuals are operating against the public good, it must be to the interests of everybody there to see that that family or group, wherever it is, will be looked upon as enemies of the community, and that ordinary social intercourse should be withdrawn from them, and that they would get no assistance from their friends in carrying out their business — farm work or other matters of the kind. Otherwise it will be a very severe strain on the local authorities if they have to pay the cost of this particular service for malicious damage on and after the date which we fix as the date on which our responsibilities cease.
It seems peculiar that there is no penalty to be levied on the parents of the Irregulars who are, perhaps Irregulars themselves, but that they are only to bear their share of any loss in any area. That means they are only asked to pay the same as any other member of the community. I do not think that is much of a liability to put on these people at all. The President has admitted that they are probably benefiting by the Irregulars, because of their sons and their friends, and if they are benefiting by these acts it is a small penalty to put upon them that they are to bear a share only on the burden on the county, the same as anybody else. Why not face this matter in a more courageous and broader spirit, and put the whole cost of the damage in the county, or an area upon people who encourage or instigate such conduct? The President's argument is that the severity is an inducement to the public to resist the action of these Irregulars. My understanding of an inducement to resist Irregular action is that a man must go out personally and resist. If a man goes out personally and resists he is taking a personal risk, and if he sustains a personal loss it is the duty of the State to compensate him. But you are not penalising people by asking them to bear only their share of the County burden; they should be made to bear the whole of this burden.
I was not quite sure whether the President dealt with the point I raised.
The President said he would deal with it on the next Section which deals with personal injuries.
Assuming that we defeated this motion can you tell us, A Chinn Comhairle, what the effect would be if the amendment was carried?
There is no amendment.
Could you tell us what the effect would be if this Section is deleted?
No, I could not.
All through the Bill there is reference to injuries with which this clause deals. What is to happen if it is struck out?
It is not a point of order.
I did not put it as a point of order. I was asking for information from the Chair.
Question put:—"That Section 15 stand part of the Bill."
The Dáil divided: Tá, 25; Níl, 18:—
Tá
- Liam T. Mac Cosgair.
- Donchadh Ó Guaire.
- Seán Ó Maolruaidh.
- Mícheál Ó hAonghusa.
- Deasmhumhain Mac Gearailt.
- Domhnall Mac Carthaigh.
- Éarnán Altún
- Gearóid Mac Giobúin.
- Liam Thrift.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Criostóir Ó Broin.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Aindriú Ó Láimhín.
- Próinsias Mag Aonghusa.
- Éamon Ó Dúgain.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
- Séamus de Burca.
Níl
- Seán Ó Duinnín.
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Darghal Figes.
- Tomás Mac Eoin.
- Ailfrid Ó Broin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Séamus Éabhróid.
- Risteárd Mac Liam.
- Cathal Ó Seanáin.
- Séan Buitléir.
- Domhnall Ó Broin.
- Domhnall Ó Muirgheasa.
- Risteárd Mac Fheorais.
- Mícheál Ó Dubhghaill.
- Domhnall Ó Ceallacháin.
Motion declared carried.
PART III.
GENERAL PROVISIONS AND REPEALS.
SECTION 16.
(1) No proceedings under the Criminal Injuries Acts or any Act repealed by this Act shall be instituted after the passing of this Act in respect of any injury which this section applies.
(2) All proceedings under the Acts aforesaid which are pending at the passing of this Act in respect of an injury to which this section applies and in which no decree has been made shall be and are hereby declared to be void and to be discharged, and no party to any such proceedings shall have any claim against any other party thereto in respect of costs incurred in such proceedings.
(3) It shall not be lawful for any person after the passing of this Act to take any steps to recover or enforce payment of the amount of any decree made before the passing of this Act under the Acts aforesaid in respect of any injury to which this section applies. This sub-section shall apply to all costs and expenses as well as to compensation awarded by any such decree, and to the interest on any such compensation which carries interest.
(4) This section shall apply to proceedings in and decrees on any appeal as well as to proceedings in and decrees of a court of first instance.
(5) This section shall apply to all injuries to the person which occurred after the 11th day of July, 1921, and on or before the 6th day of February, 1923.
I beg to move Section 16. The Terms of Reference of the Committee, to which I referred earlier, have been circulated amongst the Deputies. I have got here the names of the Committee. They are — His Honour County Court Judge Johnson, Dr. T. Hennessy, and Dr. Henry Kennedy. That will be the tribunal. This section means that in any proceedings which are to be taken in respect of injuries to the person, the claims may be heard before this Committee, and, as I have stated, the Terms of Reference of that Committee have been circulated. We are not accepting a legal liability in respect of this. I have explained that the Committee will report to the Minister for Finance, and there will be ex gratia payments. The persons affected are actually and relatively in a better position by reason of these Terms of Reference than they were up to the day on which these were passed, or at least issued. At this moment the legal rights, the equitable rights, and all the rest that we heard of, are not worth so much paper, and that is very well known.
I think, in relation to the amendment to delete Section 16, it would be simpler if the single amendment on the Order Paper, which is to introduce a new sub-section, were taken first — that is, to take Amendment No. 21 first, and then debate the Section on the motion that the Section stand part of the Bill.
I beg to move to add a new sub-section as follows:—"This Section shall not apply or prevent the presentation or prosecution of a claim to or before any Commission of Inquiry in respect of any injury to which this section applies." The President has already made it clear what the purpose of the amendment is. It is to ensure that, in respect of injuries to which the section applies, the applicant will not be precluded from proceedings before the Committee of Inquiry to which the President has just referred.
Amendment put and agreed to.
The effect of the amendment would have been, in respect of personal injuries, to leave the right of the sufferer to claim upon the County or the Borough. But the statement of the Minister as regards the proposed Commission that is being set up considerably alters the position. I would like to ask the Minister if he would say whether I am right in assuming from the Terms of Reference that have been circulated that the date (6th February) does not appertain? If it is clear that the limit of the 6th February does not apply in the case of personal injuries — and according to the forms that have been circulated I take it that that is the meaning or intention of the Minister — I would ask leave to withdraw the amendment. If that is not the right interpretation, I would feel it necessary to pursue the amendment, for the reason that no injury to the person occurring after the 6th day of February would be brought under any compensation clauses anywhere. The local authority would not be liable if this clause is allowed to remain and I submit that it is going to be an extra injustice if you remove not only the legal right to compensation but the ex-gratia claim. If I am assured that the Minister intends that this Committee will deal with cases subsequent to the 6th February I would ask permission to withdraw the amendment.
Of course it will be understood that this is ex-gratia. I am not deceiving anybody with regard to that. As such it may be stopped at any moment. To that extent there is not a limitation of a particular date just now, but there is no legal liability and all legal rights, which I regard as waste paper, are taken away. I do not know that they amounted to anything at any time because it will be observed that in the first paragraph here —“The Committee shall receive” and so on — that the date is fixed as the 21st January, 1919, the reason of that being — I am speaking from memory — that the Acts of 1919 and 1920 may have specified the date up to which a person, or somebody on his behalf, should have claimed. Some such claims may not have been made in respect of these dates and these persons are not penalised by reason of the fact that they had not claimed in time. Others were ruled out. That 21st January is of course the date of the first meeting of Dáil Eireann. All legal rights, if there were any, are withdrawn by the passing of this Section, and it becomes purely ex-gratia.
The emphasis that the Minister lays upon legal rights, and his doubt whether there were any legal rights is very interesting in view of the recent discussion I agree that unless the laws of the British Parliament were proved and ratified, probably there were no legal rights, if instituted after the 21st January, 1919. But this matter has wider effect than merely dealing with this compensation question. What I would like to know from the Minister when he speaks of the ex-gratia nature of these grants, assuming there is no legal right, as there will not be if this section passes in the way it is framed — am I to assume that there is going to be discrimination as between dates on the part of this Committee or on the part of the Minister. If the Minister assures us that they will not discriminate between compensation claims for personal injuries received before the 6th February, and after the 6th February, and if in the absence of legal rights there is going to be equal consideration given I shall be satisfied. But if we are to assume that on the 6th February there is going to be a line drawn in discussing ex-gratia grants, and that there may be a higher grant given for injuries before that date and a lower grant given for injuries after that date, I think that would not be fair. I would like some assurance from the Minister on that point.
The dates are as stated; to-day's date is the date so far as this particular instrument is concerned.
I think the Minister for Finance is to be congratulated to this extent, that he has quite evidently mended his hand——
I absolutely dispute that. I was just waiting for some person to make that suggestion. I dispute it absolutely. I do not think any one is under any misapprehension, or will see any inconsistency between any statement I made and this particular instrument before the Dáil now.
I accept the President's assertion, despite all appearances to the contrary, but I do notice that earlier in to-day's proceedings we passed a section—Section 14—in which allowance was made for application for compensation to be lodged in certain cases, and that was an ex-gratia section, but an ex-gratia section incorporated into the body of the Bill. Here we have another matter that is going to be dealt with ex-gratia, but it is not to be incorporated into the body of the Bill. I presume it is to be a sort of ex-gratia ex-gratia—a case of ex-gratia once removed. But that does not alter the fact that the complaint that has been made generally against this section, as it stands, is the complaint that has been made on general grounds. If it be right, as I stated before, and as I repeat to compensate a person for damage to his property, because at the first threat to that property he hoists the white flag and cuts and runs, why are his people and his dependents not entitled to compensation if he accepts his responsibility as a citizen, and defends his property at the loss of his life. That is the moral question that is raised. It extends far more widely even than that. The principle involved here is that bricks and mortar — material stuff — is to be compensated, but that human life is not to be compensated. That is to be put in an Act of this Oireachtas; it is to put human life on a lower rating than property. It is a bad principle to adopt in legislation, though, unfortunately, not a very uncommon principle.
It is so much to the good that on this question of human loss, whether it be of the entire human life, or whether it be of some human disability, that compensation may be considered now even on an ex-gratia basis. That is so much a gain. It is so much a definite gain, and one recognises frankly here that it is a gain. But it is not, in my judgment, sufficient and adequate. The principle that should be accepted in legislating on this matter is that human life is worth at least as much as property. Once again, I imagine that the retort will be made, and a very effective retort it is —“where is the money to come from?” My answer is, if there be a limited amount of money, as there is a limited amount of money, and if it be not sufficient, or be not elastic enough to meet claims for life and property, then life should take first place and property should take second place.
Of course I am sure the Deputy had in his mind the fact that he was suffering from outrage — personal injury — and he concluded that I had only suffered other loss. It strikes me that from the very first there has been a good deal of doubt about the way we have treated personal injuries. On the very first day, at all events on the second day that I stood up in connection with this Bill, I indicated this. We had come to the conclusion that no other form than this would adequately meet the circumstances of the case. I do not know, with all the Deputy's knowledge of the Continent and of various other nations, that he has told us there are provisions in their Constitutions for citizens who discharge their duty as citizens and who lose their lives in such discharge — that there are Statutes or Acts of Parliament or Ordinances that would entitle them to compensation. I do not know. We have not heard of it; he has not cited one. The Deputy, I am sure, with his inexhaustible knowledge of the Constitutions and laws of these countries, would certainly be in a position to tell us if there was such. But then we are to be asked to lead the way for all other nations in what he calls the appreciation of citizenship. The real matter that we have got to deal with here is not the dividing up of the property of the Nation amongst the sufferers. That is not the way to look at it. The thing is to compensate in as equitable a way as the resources of the Nation permit.
Hear, hear.
I am glad the Deputy has at last got to my way of looking at the question. It is the first time I have heard him appreciate any of my remarks, and I am sure it is a return to wisdom. I leave it there.
The motion to delete this Section was put forward with a view to ensuring that the sufferer would at least have a second string to his bow. Strictly and rightly the whole Nation should bear responsibility for suffering in extraordinary circumstances, not the ordinary risks of citizenship but extraordinary risks that have to be run by some citizens, and which some citizens have suffered from. Take the extraordinary risks of railwaymen that were mentioned the other day — of men knowing that they are running those extraordinary risks, and who are enjoined to run those extraordinary risks in the interests of the common good. They could refuse to undertake extraordinary risks and few people would blame them. They would be quite prepared to undergo ordinary risks of danger and injury but we are asking them to undergo extraordinary risks and we think that they should be assured of some security for the future if the risks they run lead to personal disaster. In the absence of any National liability there is a possibility—according to the Minister a slight possibility—but, at least, a possibility, that the local authority could be made liable for compensation. The proposal now is that the men undergoing these risks, and suffering injury in the course of their occupation in extraordinary circumstances, may be granted some ex-gratia compensation provided that the injury does not take place after this date. The man who goes out from Kingsbridge to-morrow and is injured by rifle shot, and who is asked to undergo that risk in the common interest, is not going to be ensured even to the extent of ex-gratia consideration. Nobody is prepared to bear the responsibility of that particular man's loss sustained in undergoing extraordinary risks, risks beyond the risks of the average citizen. That is not satisfactory. I am prepared to concede a good deal to what the Minister said with regard to the need of leaving this matter in the nature of ex-gratia payment, though I would infinitely rather see it was accepted by the Oireachtas as a National liability; and I agree that if there is a limited sum of money available the personal injury should have first call. I see possible difficulties which I will not deal with here, but I want to ensure, at least, that the men who are going out to do their duty to-morrow morning are not going to undergo that extraordinary risk with this facing them — that the promise of compensation ceases tonight.
In that connection, and when we mention the word "extraordinary risks," it is really impossible to limit it to any particular class or section. The documents I have seen from time to time, captured documents, leave scarcely any class or section of the community unthreatened by dire penalties in the event of their doing things which, if they recognise the existence of the State at all, they are bound to do. I have seen within the last three weeks a document in which the death penalty was set out, and, I think, there were 21 different sections of people to whom it was held to be applicable and against whom it was to be enforced. Reading it down one wonders who are going to be the final survivors in this country if the instructions embodied in that document were taken seriously and carried into effect. A man who is called to act on a coroner's jury to-morrow, and refuses to return a verdict that is desired by the local brigand chief runs an extraordinary risk. In parts of the country the man who pays rent or land annuties, or pays anything, does so under threat of death. The whole country is up against an organised terrorism, and it is scarcely possible to speak of any class or any section as labouring under an extraordinary risk. The country will have to face it in that way, but one cannot pick out, in circumstances like the present, particular individuals or particular organisations, and say that that individual or that organisation is exposed to an extraordinary risk. The Departmental Committee which the Minister for Finance proposes to set up will deal with the matter, and, I think, deal with it on a satisfactory basis. The tag about life being more valuable than property is scarcely sound. Life is so much more valuable than property it is not possible to compensate for it, but the State does what it can to place the survivors in a position, not too unfavourable and not too much worsened by the calamity that has befallen them.
The Minister for Home Affairs seems to place an emphasis on the word "extraordinary" simply because Deputy Johnson stated the case of the railwaymen. I agree that perhaps extraordinary risks are undertaken even by the Minister himself, and perhaps by every member who is here trying to carry on the work of the State. But there are individuals who undertake extraordinary risks from day to day, and who have more protection, and who ask for and get protection to a far greater extent than the individuals who carry on the work of essential public services — such as the railways. The Minister, I am sure, cannot deny, as it cannot be denied by anybody, that the railway services are absolutely essential to the carrying on of the life of the nation. These people who go out on engines in the darkness of the night, and in face of danger, have some right to expect that they should get some consideration for the risks they undertake in order that they may earn a dividend of three or four per cent. for the shareholders and fees for the directors, and carry on the work of the nation at the same time. I do not like to make a distinction, but, I think, at any rate, there is some distinction. It is only right to expect that some consideration should be given in the case of men who lose their lives in carrying on work of that particular kind. We have had experience and proof in certain parts of Ireland—and I do not think any one part can be set aside in that respect— where engine drivers and other men engaged in the manipulation of railway traffic have received threatening notices from day to day, stating that if they do not do so and so, and if they do do so and so certain things will happen. I think the dependents of these men, who know that such notices are received by their breadwinners, have a right to expect— owing to the risks involved by them— that they will receive some consideration from the State on whose behalf they are carrying on this essential work.
With reference to the Minister's statement about the extraordinary risks which jurymen and various others run as compared with railwaymen and others who have been mentioned, I should like to point out that there is a continuity in the running of the risk on the part of railwaymen which does not apply to others, except, perhaps, to Ministers, Deputies, and Senators. A juryman, after all, is not serving on a jury every day or every night. He is, of course, out in the open and in public, and is liable, if he gets a threatening letter, or without a threatening letter, to be shot at or to be injured by the blowing up of his house, or something like that. In spite of the threats made against various categories of people, there have not been very many instances, and at the moment I cannot recollect one case recently, in which it could be stated that a juryman, qua juryman, was injured in his person. There have, however, been some cases of railwaymen so injured. I should like consideration to be given to the continuity of the risk from day to day, hour to hour, in the case of the railwaymen. It is quite true, as the Minister stated, that life and the person is so much more valuable than property that, on the face of it, there is not any comparison. Those of us who are wanting provision for personal injuries know perfectly well that no matter if the coffers of the Minister for Finance were overflowing with money, all that money could not compensate for loss of life, in the sense in which the owner of a building could be compensated for the loss of that building. But stones and mortar and machinery, and those sort of things, are not the only things in which there is property. There is property in life and limb, and it seems to me that the real vicious principle that is being introduced in this instrument is that it is not recognised by the Government that there is such a thing as property in life and person and limb. Compensation is asked for in these cases. After all, there is economic value in an engine-driver's limbs. If he loses a limb he loses property; his family loses property, because the man's labour is the only property of which he is possessed, and it is, in as real a sense as stones or mortar or bricks, property to him and to his dependents. For that reason, and not because we expect any sum of money would compensate for actual life, we urge that some compensation would be paid—not merely an ex-gratia thing, which they might not get at all—that some provision should be made for compensation for the property of people whose only property is their labour, their limbs, or their person.
Question put: "That Section 16, as amended, stand part of the Bill."
The Dáil divided: Tá, 32; Níl, 16:—
Tá
- Liam T. MacCosgair.
- Donchadh Ó Guaire.
- Seán Ó Maolruaidh.
- Seán Ó Duinnín.
- Mícheál Ó hAonghusa.
- Séamus Breathnach.
- Domhnall Mac Carthaigh.
- Éarnán Altún.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Eoin Mac Néill.
- Seosamh Ó Faoileacháin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Séamus Ó Cruadhlaoich.
- Criostóir Ó Broin.
- Risteárd Mac Liam.
- Caoimhghin Ó hUigín.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Aindriú Ó Láimhín.
- Próinsias Mag Aonghusa.
- Éamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Éarnán de Blaghd.
- Uinseann de Faoite.
- Domhnall Ó Broin.
- Séamus de Burca.
- Mícheál Ó Dubhghaill.
Níl
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Darghal Figes.
- Tomás Mac Eoin.
- Ailfrid Ó Broin.
- Liam Ó Briain.
- Liam Mag Aonghusa.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Séamus Éabhróid.
- Liam Ó Daimhín.
- Cathal Ó Seanáin.
- Seán Buitléir.
- Domhnall Ó Muirgheasa.
- Risteárd Mac Fheorais.
- Domhnall Ó Ceallacháin.
Motion declared carried.
At this stage Mr. George Nicholls took the chair.
SECTION 17.
I move Section 17:— (1) All the powers of appointing a person to act temporarily as an additional Judge of a County Court conferred by Section 8 of the Criminal Injuries (Ireland) Act, 1920, on the Lord Chancellor shall from and after the passing of this Act be exercisable by the Governor-General of Saorstát Eireann acting on the advice of the Executive Council as fully as if the Governor-General acting as aforesaid was named throughout the said section in the place of the Lord Chancellor.
(2) Every person appointed under the said section 8 of the Criminal Injuries (Ireland) Act, 1920, as amended by this section to act temporarily as an additional judge of a County Court shall receive out of moneys provided by the Oireachtas such remuneration as the Minister for Finance shall appoint.
It is simply a provision for appointing an additional judge that may be required.
Question put: "That Section 17 stand part of the Bill."
Agreed.
NEW SECTION.
I move:—"To insert before Section 18 a new Section as follows:— `The power to make rules for the purposes of Section 5 of the Local Government (Ireland) Act, 1898 (61 & 62 Vict., ch. 37) shall extend to the making of rules of Court for the purposes of this Act.' "
It is simply to remedy an omission in the Bill which does not make any provision for making rules of Court.
Motion put and agreed to.
SECTION 18.
I beg to move Section 18:—
(1) The several Acts specified in the First Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule.
(2) The repeal of section 3 of the Criminal Injuries (Ireland) Act, 1920, effected by this section shall be retrosspective to the extent that every order or certiorari and every order for attachment made under that section before the passing of this Act shall be and be deemed always to have been void and of no effect, and any money paid under or in pursuance of any such order shall be re-payable and recoverable on demand at any time within six months after the passing of this Act.
(3) The repeal of section 4 of the Criminal Injuries (Ireland) Act, 1920, effected by this section shall be retrospective to the extent that so much as is at the passing of this Act unpaid of the amount recovered (excluding therefrom any sums recovered for costs or expenses) under any decree made against a County Council after the 23rd day of December, 1920, and before the passing of this Act shall not carry any interest but such repeal shall be without prejudice to and shall not give any right of repayment in respect of any interest actually paid under the said section before the passing of this Act.
I move "To delete sub-section 2." I am glad to see it is being supported by Deputy Fitzgibbon. I am sure he will put forward the reasons for its deletion in a much better way than I can.
When I came to put down the amendment standing in my name, "to delete sub-section 2," I was very glad indeed to find that Deputy Alfred Byrne had got the same amendment down already, because I have always been afraid that I took too narrow a view of legislation, because I have spent my life in the study of the law and I have never been concerned in any way, with either politics or public affairs to any great extent. It was only from the point of view of a lawyer that I put down this amendment, but when I found that a Deputy, of the experience in public affairs of Deputy Alfred Byrne, had taken the same view as I had about this sub-section, it strengthened my confidence very much indeed. I am fundamentally opposed to retrospective legislation of any kind, because it is essentially unjust. It is grossly unjust to say that the man who has done what was perfectly lawful, what he was entitled to do, and in some cases enjoined by law to do, shall by something that has happened afterwards be made a criminal or a person who has acted illegally. That is not dogma of my own at all. It has been the principle that has been laid down not only by judges but by great jurists, and people who have written upon the philosophy of legislation from almost, I might say, time immemorial. I would take the liberty of quoting three lines of a very great judge which were concurred in by others for a century afterwards:—"It manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by new enactments. Modern legislation has almost entirely removed that blemish from the law." And it was said by a greater judge, that "the general rule, not merely of England, Scotland and Ireland—but I believe, of every civilised nation, is expressed in the maxim, that new laws affect future transactions not past ones." That is borne out if you go back to 1803 and read the second section of the Civil Code, which was and is the law of those countries that do recognise the civil law. The very second section is that retrospective laws shall not be enacted. "Law only deals with the future; it should have no retrospective effect." The effect of this sub-section is to make that unlawful which was not only lawful, but was enjoined at the time it was done, and the most iniquitous portion of the whole section is that which in an alternative amendment I have suggested should be deleted—if the Government will not consent to delete the whole section—that is, that money which has been lawfully recovered, and has been paid away by those who recovered it to the people entitled to get it, shall be handed back by them. One effect of this section would be as follows, to take an example:— The stores of the British and Irish Steamship Company at the quays were burnt at a time when they were full of property which that company were carrying for third parties. Those third parties had a right of action, which they exercised, but which for the future has been taken away by this Act, of proceeding against a carrier for damages for goods destroyed while in the carrier's custody. I do not know whether the British and Irish Steamship Company exercised what was then their lawful power, to seize the rates in their own hands that were payable to the Corporation of Dublin, which Deputy Byrne represents at present. I do not know whether they did it or not, but if they did, and utilised the money so held by them lawfully under the law as it then existed to compensate traders who had sued and obtained decrees against them, could there be anything more iniquitous than to say that the British and Irish Steamship Company, or any other company, who had not put the money in their pockets, but had paid it over to people who had got decrees against them, should now pay it back? That is the effect of this section as it stands—"Every order of certiorari and every order for attachment made under that section before the passing of this Act shall be and be deemed always to have been void and of no effect, and any money paid under or in pursuance of any such order shall be repayable and recoverable on demand." Therefore, if any carrying company or anybody else in the exercise of his lawful right of withholding the rates that were due by him to the local authority that had refused to strike a rate for criminal injuries, had paid that money over to his own creditors, he would have to pay it to the creditor and then to the municipal authority—that is, he would have to pay it twice over. I do appeal to the Government not to put themselves out of the category of what was described as "every civilised nation," by enacting this retrospective legislation; at any rate not to undo that which has already been done and acted upon while it was lawful so to do and act.
This amendment raises in a very acute form a question that came before the Dáil in regard to an earlier legislation. In passing, I believe it could be maintained, and will be maintained, and is certainly a maintainable suggestion, that the sub-section as it stands is very questionable constitutionally. I think the construction of certain articles, when read together with the Constitution, would show they are not Constitutional, and are ultra vires under the Constitution. But, to leave that aside, and not to put forward anything like that, which is a question of construction, Deputy Fitzgibbon has urged in respect of his amendment that by no act of this legislature will we put ourselves out of the general category of “every civilised country.” Even if we were a State that had been continuously existing for some time, that argument would have peculiar effect. If, for example, at some future time it were to be proposed that legislation should be enacted that would be retrospective in so far as it undid the legislation that had been enacted by that same State at an earlier period of its existence, the argument that Deputy Fitzgibbon has brought forward would have urgency and matter in it. It may be suggested, however, that owing to the passage that has occurred from one Government to another, we are absolved from that argument to a certain extent. I do not know whether that argument will or will not be raised. I hope it will not, because I suggest we are more bound by the circumstances that have occurred than we would if we had been acting continuously as a State for some time; that we are more bound because there has been a transference of government from one nation to another. We are more bound, I suggest, for this reason—that we have entered into a treaty of peace with England by which we took over this country from her as a going concern. Having taken it over so, whether we like the commitments that she made or not—I imagine very few of us like many of them—the great majority of which we would object to very strenuously and would be delighted if we could honourably evade them—we are responsible for those commitments. The point is that we did enter into an international treaty with England by which we took on the responsibilities she incurred in this country, and we took them on as a going concern. We are, therefore, responsible for all the commitments that she engaged herself in here, and we are engaged to that extent. That is the argument I would like to bring before the Government. I do deeply and rootedly believe that if this clause were to be enacted as it stands, Sub-section (2) would lay us open to the charge of dishonour. Conceive, for instance, that A bought from B a certain business as the result of a covenant by which the business was taken on as a going concern, and having bought it sought by some shift to evade the liabilities and responsibilities B had passed over to A, and for which A was, therefore, responsible under the law. It may be said we have succeeded; that has been said in this Assembly when I brought this argument forward once before in connection with a different Bill. It was said we have taken over this Government from the Republican Government that existed before. That is true. It is true to this extent, that we are the heirs of the Government, but it was not with that Government we signed an international treaty. It was with the English Government we signed the international treaty, and the signatures of the Plenipotentiaries have been put to that bond, we are bound by all the liabilities and commitments that England undertook here, and we ought to acquit ourselves of them and not seek, having once come into possession, to liquidate our responsibility by retrospective legislation of this kind. We know this thing occurred before in other countries. When I was dealing with this case before, I mentioned an instance of a very noble appeal made by one of the world's greatest statesmen—Alexander Hamilton. Exactly the same argument was brought before the United States at the beginning of its career, that the United States was not bound by those earlier liabilities. Alexander Hamilton then stated that from his financial experience it would be a very desirable thing for the United States if they could evade those responsibilities, but he held it was not a question of what was convenient or expedient, but a question of what was honourably binding on them to do, and he urged as against the contrary argument put forward by Benjamin Franklin that they should stand by their responsibilities. When I raised that argument here before Deputy Fitzgibbon, from his greater learning and wider reading, completed the extract I had quoted by quoting from the words of Adams in the same debate, when he stated that this was a question of honour and not a question of compensation for torts. So, in this matter, I would say our honour is committed. It would be very desirable if we could get away from these judgments that have been given under Statutes that we have actually taken over. It might be very pleasant to be able to get away from them, to evade them, but I do urge very seriously that it would not be honourable for us to do it, and though we incur by this a financial burden that we were not able to bear, yet let it be said that we went down bearing what was honourably due by us instead of seeking to evade those responsibilities which we have incurred by an international bond.
That argument, coming from Deputy Fitzgibbon, is easily understood, and is quite consistent with his general attitude for the past few years; the argument coming from Deputy Figgis strikes a discordant note. Again, we are faced with the question: do we recognise the 21st January, 1919, as having no effect in this country? Is that a date of any moment, or are we to consider the period from the 21st January, 1919, to the 6th December, 1922, as of nothing but a period of eruption? The appeal to honour suggests to me that it has been a tremendous mistake to have asked the British Government to take the responsibility for the destruction by the Black and Tans. That was done under the authority of the Parliament and the Government of that period. If we took over the responsibility of a running concern, we should have taken over that responsibility. We declined to do it, and they admitted that they were responsible for that damage and that Ireland was not responsible, because, as I submit, Ireland had a legislature. Now, the constitutional position is raised in this question. Was the Dáil functioning as a legislature with the authority of the people, and were its acts right and legal? If so, except in so far as the Acts of another Parliament of another country were approved and accepted by that Dáil, then they are not and cannot be enforceable, and they cannot be quoted as a liability of this State. I agree with the principle that Deputy Fitzgibbon has enunciated, that retrospective legislation is bad, but this is not violating that principle. The legislation was not the legislation of the Parliament of Ireland, it was the legislation of another Parliament, passed with the deliberate purpose of making illegal, proving the illegality, proving the falseness of the claim of Ireland that she had set up a Parliament. It is not a correct analogy at all to quote the position of the American Colonies in the American War of Independence. If we are going to take the view, as I maintain we ought, that any legislation passed by the British Parliament affecting Ireland from the period of 1919 is only enforceable in so far as it has been approved formally or tacitly by the Irish Parliament, I am consistent in maintaining this position, because it is the position I maintain in regard to the Income Tax. I hope the Minister will not accept the amendment to delete this clause. The question raised in the latter amendment, which is not yet under discussion, is somewhat different, but the legal position, I maintain, the right position for us to take as the successor of the previous Dáils, having accepted a different relationship, a new relationship, with the British Legislature, that the enactments of the British Parliament do not run in this country unless ratified and approved by the Irish Legislature since January, 1919.
I think Deputy Johnson is under a misapprehension. The American Colonies were dealing with matters that had occurred after the Declaration of Independence, and I doubt whether any thing that has been done in this country was a more complete repudiation of all sovereignty by everybody. It certainly did not result in quite as complete a destruction of that sovereignty as the Declaration of Independence did, consequently the Statute to which Deputy Johnson referred did not act retrospectively, nor did it declare anything to be legal that had been previously illegal. The statute you are dealing with now merely authorises a creditor to withhold monies in his own hands instead of paying them over to a person who was indebted to him and who refuses to put in force the law that has been long in existence binding them to levy a rate to pay for malicious injuries done. Therefore it is not a case of a statute passed during that period of interregnum. All the Criminal Injuries Act did was to authorise certain creditors of local authorities to retain monies that were in their own hands in lieu of the monies that ought to have been paid to them if the law had been properly carried out by the local authorities.
I think so.
Before the Minister replies, I should like to take the opportunity of answering the argument that has been put to me fairly and very justly by Deputy Johnson. It is an argument that has no point, if I was unaware of the full force and weight of the argument that he has made and very truthfully made. In so far as the American case is concerned I do acknowledge to have pointed out that was a perfectly complete parallel. No parallel could have been more perfect and complete as he will find if he looks into it. That had already been said by Deputy Fitzgibbon, and I am therefore left with one simple case that Deputy Johnson puts to me and it is this: in January, 1919, Independence was declared, and do I or do I not, did I or did I not recognise the force of that declaration? I both did and do. I recognise that the Dáil then was the sovereign assembly empowered, and the only body that was empowered, to act legally on behalf of the Irish people. I accept that in the fullest and most unmeasured sense. I accept also that any body in Ireland or out of Ireland that disputed the authority so set up by the Irish people was an illegal and unconstitutional authority, but I was not referring to these legal continuities, I was referring to something else. I was referring to the fact that subsequent to that date certain persons who acted as Plenipotentiaries from Ireland entered into a contract which they bound themselves to observe—I am not talking about the fact that between January 1919, and December 6th, 1921, Ireland had a Government and a Parliament of its own, and the only legislature empowered to act on its behalf. In the full light and recognition of that our Plenipotentiaries signed the Treaty with England, and according to the terms and conditions of that Treaty we took on this country from England, rightly or wrongly, as a going concern. I stand four square on the Treaty as the basis on which I deliver my arguments in this case. Now, the Treaty is a very binding document in this particular regard. I wonder that Deputy Johnson, with his keen sightedness in these matters, did not perceive how his own argument cut. He referred to the fact that we were, according to the Treaty, omitted from responsibility and liability for the acts of the Auxiliaries. That is true; we were specifically, in the second part of Article 10 of the Treaty. But if a document specifically excludes us from responsibility in one regard then it is fair to construe that document as saying, where it does not specifically exclude us, we are bound, and we are not specifically excluded with regard to these other matters; we are only specifically excluded with regard to one question. It has relieved us there. With regard to all other questions that international Treaty has bound us, and I do urge that this is going back upon the signatures of our five Plenipotentiaries in the Treaty.
Would Deputy Figgis point out the Clause of the Treaty which annuls every Act of the Dáil?
I have stated that it does not annul any Act of the Dáil, that the Acts of the Dáil remain as Acts of the Dáil, but having recognition of that fact, as it must have been present in the minds of all our Plenipotentiaries, they signed this bond with England and took on the government of the country from that moment as a going concern, and therefore, we are bound to pay our obligations in this matter. I need not have brought before me how desirable it would have been to escape some of those obligations if we could. It would be very desirable, indeed, to run away from these monetary responsibilities that have been incurred; it would be very pleasing to do so; it would be a great relief for the Exchequer of this country in the burden that we shall have to bear in the future. It is not with any love for these decrees that I am standing to speak now. I am standing to speak only on one question, because I consider that we are bound in honour by the Treaty signed by our Plenipotentiaries, and that we are now required in this Sub-section to go back on these signatures, and I object to doing that.
I do not subscribe to that statement by Deputy Figgis at all, good, bad, or indifferent. We are not going back on any signatures, and we are not going back on any agreement which we made—made honourably—and we are going to keep honourably every single agreement we are going to enter into. We have done it from the first, and are going to continue doing it. I wish the Deputy would know a little more about a subject that he gets up to speak on, and not speak about the ethics of something else, leaving aside altogether the main issue involved in this business. The prohibition of retrospective legislation is commonly applied only to criminal law. We are not interfering with criminal law, even although this is called the Criminal and Malicious Injuries Bill. We are not making criminal Acts retrospective, and I believe, if the Deputy will consult the Constitution, he will find that that is the case in it. Great Britain, I believe, is going to legislate retrospectively as to the Increase of Rent Act.
Not now.
These certiorari proceedings which are not subjects of contention as far as this section is concerned, were illegal; they were openly and definitely prohibited by the Dáil, which was either the sovereign Assembly at the time or was not. Those particular Acts of 1919 and 1920 were not alone unjust; they were immoral and indefensible absolutely. And that is what you seek to perpetuate; that is what you want to legalise and to secure the continuity of—an immorality.
I have already stated that I quite saw at the time that when we undertook these responsibilities we undertook this country as a going concern.
Sir, we did nothing of the sort. At the very first meeting that took place after the signing of the Treaty between the Minister for Home Affairs, the late Commander-in-Chief, and, I think the late President and Mr. Duggan, they took the earliest opportunity of making their contribution towards the situation which had developed. In other words, they accepted responsibility and discharged the liabilities that they had withheld, to the extent of £1,130,000 of withheld grants, or something like it. It was agreed that these particular Acts would be repealed at that time, but circumstances rendered it difficult, if not impossible, to do so. Now, the Criminal and Malicious Injuries Act of 1919 upset the previous law; it upset the whole finance and accountancy of local government. The late Chief Baron Palles, who was, I think, a very good jurist, if not one of the most prominent who ever lived in this country, laid it down that money collected by a local authority for one purpose could not be spent for another purpose. What did this Act of 1919 contemplate? It contemplated a single pool of all the different ratings of local authorities and made them not available for their purposes, but for the payment of decrees and awards made by the judges in respect of this particular Act. So that in essence it amounted to this, that not alone would every single copper that had been collected in the year 1920-1921 have gone towards the payment of every single decree for malicious injuries during that period, but the hospitals, the relief of the poor, the upkeep of tuberculosis institutions, the cleansing of the streets, the provision of water, the maintenance of health services, and so on, every single one of these would have had to cease their operations. You would have been presented with a law, and the question of the carrying out of the law, and disorder and chaos and anarchy and everything else at the same time. That is what we are asked to perpetuate. So serious was the situation in April or May of 1921, that there was issued over my name, by me, a notice to all persons holding decrees stating that if they put these into operation, garnisheed or attempted to garnishee the rates, that the entire resources and forces of the Republic, or of Dáil Eireann, would have been utilised against them. That is the situation you wish to perpetuate here. That was a law, but it was not lawful; it was a statute, but it was not lawful; it was unjust, immoral and wrong. Through our influence and through our work, and through the commonsense and justice of the people, very, very few cases of garnishees took place. The Minister for Home Affairs knows better than any other person, I suppose, because we were associated for many months in connection with this matter, how serious the situation was during many, many months. Every act and every deed and every day that we lived during that period would be a lie if we did not take up this attitude with regard to this particular Section here. The majority of the people of this country had sufficient civic spirit to withstand the temptations that were there in that Act of 1919, which was not strong enough, and which had to be supplemented by the Act of 1920. But if the only answer that we have got to give them now for having stood their ground, obeyed the dictates of the Dáil at that time, and for acting as true citizens, is that the plunderers, the vampires of that time, are going to get the money that they have secured and grabbed and robbed from the ratepayers, and that it will remain safely and securely in their pockets, then what will their opinion of Dáil Eireann, and of the people who comprise Dáil Eireann, be?
We collected in America, and in Ireland, huge sums of money from the people, and at one period during that struggle the situation was so serious that we got from Dáil Eireann permission to use £100,000 in order to help the funds of the various local authorities throughout the country, and to keep the doors of their hospitals open and to keep the Relieving Officers distributing relief to necessitous cases throughout the entire country.
At one moment during that time we were presented with the situation in which, within three weeks, the water supply of the City of Dublin would have to cease, and the cleansing of sewers and the cleaning of the streets would have to stop, the Dublin Union would have to close its doors, and the Richmond Lunatic Asylum would have to open its doors and let the lunatics go, because there would be no money to keep them. The Act of 1919 was defective. It was called by the name of its maker until he found it was deficient, and then he sought a rescuing Act, and, therefore, the Act of 1920 was brought in, and that Act gave them power to take every single copper going into the coffers of the local authorities and to garnishee the rates in people's possession. I think out of some £10,000,000 not £30,000 went wrong during that time, and that is a tribute, and a great tribute, to the civic sense of the people of that period. We are prepared to consider easing this situation. There may be cases in which people had to do these things. I heard of one case in which a man's house was destroyed and he had to garnishee his own rates. We will see about easing the situation to this extent that the payments that will be made by us will be contemporaneous with the payments we demand back; it may not be the same, I can give no guarantee as regards that. What we are bound in my opinion to is this: that, having regard to the whole of the period we have gone through, and the difficulties of the time, we are bound to the great number of people who withstood this temptation, and we are bound to see that they, at any rate, were justified in their action, and that those who violated every principle of morality or justice or equity will not benefit by the plunderous actions they took at that time.
I have got now what I had not when I supported Deputy Byrne in moving his amendment. Whatever we may or may not have accepted from former Dáils, there is no doubt as to what we have done ourselves. We passed, on the 20th December, 1922, an Act called "The Adaptation of Enactments No. 2 Act, 1922," in this Assembly, and the second recital in that Act is: "Whereas all Acts passed by the British Parliament which were in force on the 6th December, 1922, being the date of the coming into operation of the Constitution aforesaid in the area now comprised of Saorstát Eireann, will, by virtue of the said Article 73, have the force of law in Saorstát Eireann." This Act had the force of law or it had not. If it had not, why should the Government now repeal it? You do not repeal a non-existent Statute, and in the Bill now before us the sections of the Act specified in the First Schedule are thereby repealed to the extent specified in the third column of that schedule, and it does appear to me that when you are actually keeping in force four sections of the Criminal Injuries Act, 1920, it must have been in force in some legal way or recognised by us as in force, because we have not re-enacted it. If it is non-existent and not passed by the authorities that were in power here, how does it come that Sections 1, 3, 4, and 7 of the Act could still be law?
There may be technicalities about that, which, perhaps, might give rise to misapprehension. At the very earliest opportunity after the Provisional Government was set up notice was published indicating what was to be our attitude about this matter—on the Criminal Injuries Act. I take it that with the taking over from the British Government of the powers of government we could not immediately wipe out, as we ought to have considered wiping out, this Act at that time. We did not do it because this Bill at that time was under our consideration, and the principal chapters were in the course of preparation, and we meant to deal with it here. It was always our intention from the very beginning to deal with this Act; and if, perhaps, we missed the time or did not take the earliest opportunity of doing it, it was not because at that time there was any hesitancy about doing it upon our part. We never recognised this Act as in force. It is right to say that no body in this Assembly or this Dáil, or in previous Dáils that I knew of or was in contact with, ever admitted liability in connection with that Act, and never admitted its existence. I am positively certain that, as far as I am concerned, and, possibly, as far as the Minister for Home Affairs is concerned, our activities in the recent struggle would be of very little use but for the stand we took in defeating its operation. We did that because it was unjust, and could not be justified by any code of morals. That is the only thing we take our stand on. We may, perhaps, not have complied with certain technicalities that should have been complied with since the 6th December, but at no time was there any doubt or hesitancy about what should be done.
Mr. O'HIGGINS
I may supplement by a few words the President's remarks. I would point out that this Act was not in force on the 6th December, and was never in force in Ireland. It was defeated in Ireland, defeated by the Second Dáil— the Department primarily concerned— with the enthusiastic co-operation of nine-tenths of the local authorities, and at least three-fourths of the people of the country. You may say it was never formally repealed or repudiated. It was, however, publicly contested and defeated by a Department acting with the full authority and approval of Dáil Eireann. To repeal it now is merely to wipe out from the existing code of laws of the country an Act that should never have been placed there, an Act that made money, collected and essential for the vital public services of the country, available for compensation for war damage; an Act, too, which, in practice and if not defeated, would have been a blow at the sick, the poor, and the helpless of this country. That Act was never honoured here. It is formally repealed now by this Act, merely to take away and bury an Act that is a disgrace to any Statute Book in the world.
Will the Minister then consider the advisability of putting this disgrace into his schedule of the Acts repealed, because up to the present he has only put in Sub-section 1 of Section 1, and Sections 3, 4, and 7, so that he appears to be retaining the rest of this disgrace by not repealing it. It is very misleading to be told that this Act was never in force at all. Why then only repeal the first two or three sections of it? What becomes of the rest?
Amendment put and lost.
I beg to move my second amendment: In Sub-section (2), in line 46 to insert after the word "shall," the words, "so far as the same has not been executed or enforced," and delete the concluding sentence of Sub-section (2), lines 47 to 50, from the words "and any money" to the words "passing of this Act."
It simply provides that money actually paid away shall not be demanded back. Anything I have said up to the present applies with greater force to this.
I will undertake to ease the situation by making recoupments contemporaneous with payments to Local Authorities. Local Authorities have in certain cases lost all this money, and we must restore it. Local Authorities have certain funds, such as Poor rate and County rate. In Dublin you have the Improvement rate, Library rate, Poor rate, Lease rate, Criminal and Malicious Injuries' Act rate, Grand Jury rate, and so on. Some one or other of the funds may be short perhaps of the whole of this sum, or it may have been distributed amongst them, but in any case the Local Authority should be restored its money. What we mean to do in regard to easing the situation is to make the recoupment contemporaneous with payments to Local Authorities.
I move the amendment. It is a question of pure principle.
Amendment put.
The Dáil divided: Tá, 6; Níl, 40:—
Tá
- Darghal Figes.
- Ailfrid Ó Broin.
- Éarnán Altún.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Liam Mag Aonghusa.
Níl
- Liam T. Mac Cosgair.
- Donchadh Ó Guaire.
- Seán Ó Maolruaidh.
- Seán O Duinnín.
- Mícheál Ó hAonghusa.
- Tomás de Nógla.
- Riobárd Ó Deaghaidh.
- Séamus Breathnach.
- Tomás Mac Eoin.
- Deasmhumhain Mac Gearailt.
- Domhnall Mac Cárthaigh.
- Liam Ó Briain.
- Eoin Mac Néill.
- Pádraig Ó hOgáin.
- Tomás Ó Conaill.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Criostóir Ó Broin.
- Aodh Ó Cúlacháin.
- Séamus Éabhróid.
- Liam Ó Daimhín.
- Caoimhghin Ó hUigín.
- Próinsias Bulfin.
- Séamus Ó Dóláin.
- Aindriú Ó Láimhín.
- Próinsias Mag Aonghusa.
- Cathal Ó Seanáin.
- Éamon Ó Dúgáin.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Éarnán de Blaghd.
- Uinseann de Faoite.
- Seán Buitléir.
- Domhnall Ó Broin.
- Séamus de Burca.
- Domhnall Ó Muirgheasa.
- Risteárd Mac Fheorais.
- Mícheál Ó Dubhghaill.
- Domhnall Ó Ceallacháin.
- Risteárd Mac Liam.
Amendment lost.
Question put: "That Section 18 stand part of the Bill."
Motion declared carried.
SECTION 19.
"In this Act the expression `Criminal Injuries Acts' means the enactments specified in the Second Schedule to this Act; the word `injury' means any loss, damage or injury in respect of which compensation could be given under the Criminal Injuries Acts; the word `Judge' includes a Recorder and also includes a Judge of Assizes or other Judge or Court hearing appeals from a County Court Judge or Recorder."
Question put: "That Section 19 stand part of the Bill."
Agreed.
SECTION 20.
"This Act may be cited as the Criminal Injuries Act, 1923."
Question put: "That Section 20 stand part of the Bill."
Agreed.
FIRST SCHEDULE.
I move the 1st Schedule.
Surely the President is not going to retain upon the Statute Book a thing he has already described as a disgrace to any civilised country—that is, the Criminal Injuries Act of 1920. And yet he is only going to repeal Sub-section 1 of Section 1, and Sections 3, 4, and 7. Will he not blot out the whole of Section 1 and Sections 2, 5, and 6? If this be not law and never was accepted for law in Ireland, how do these sections remain law to-day?
It will be observed that there is a Second Schedule. The First Schedule refers to Sub-section 1 of Section 1, and to Sections 3, 4, and 7 of the Bill. Then it will be observed that the whole Act goes out except 1, 3, 4, and 7.
That is only a definition section.
I think it refers to the borrowings.
The Second Schedule is only a definition of the things that are called Criminal Injuries Acts. The First Schedule is the schedule that contains the enactments repealed. It has repealed only three sections and one single sub-section of an Act which consists of seven sections. It does not repeal the Criminal Injuries Act of 1920 at all, with the exception of these three clauses. That is the Statute, and not the Statute of 1919, that we were dealing with in the last amendment. The last amendment was to repeal Sub-section 3 of the Criminal Injuries Act of 1920, and that was the enactment which the President has described as a disgrace to any Legislature.
I would second the suggestion of Deputy Fitzgibbon that the whole Statute should be repealed, and that it should not appear that any portion of it should remain as approved by the Oireachtas. I do not think it would be an impossible matter for a further amendment to be moved on behalf of the Ministry, say at the next sitting, and we could adjourn the discussion of these schedules for the purpose of getting this obnoxious enactment entirely wiped out.
There are parts of this Act which we would in the ordinary way re-enact; such as the Sections dealing with the borrowing of money— in the event of too much being placed upon one year, to enable the local authority to spread the payments over a number of years. I am instructed that each of the objectionable clauses and every objectionable clause or any clause that is a disgrace is embodied in those that are down here to be repealed.
The President told us it was never law in this country, that it never had force. How did it get force?
From the very first day when we got to know the provisions of this 1920 Act we thought that it was an Act which should never have been passed. It was a monstrous Act from the very first. There is every reason why it should not have been passed, and there is every reason now, when we get the first opportunity, that we should repeal it. At this moment the argument is put forward that it should be repealed in this Bill, but when this Bill becomes an Act then it also becomes an Act of the State. It cannot both be law and not be law.
Like Mahomet's coffin.
I think the intention in quite clear. The intention is that certain parts of this Act shall have the force of law in future. So far, it had not the force of law. It was adopted as a law, I take it, or it will be covered by adopting the Article of the Constitution when it has the force of law. There is no reason at all why we should refuse to accept provisions that are useful provisions simply because they happen to be embodied in what was a penal Act, and an Act that was imposed upon this country as a war measure. In so far as that Act was a war measure and a punitive measure, and in so far as it was aimed at the life of the people in precisely the same way as the Irregular activities are aimed, it was a thoroughly disgraceful Act. But if there are provisions in that Act which are useful provisions, then there is no reason at all why we should not allow them to stand. There is no particular reason either why we should take them out and put them somewhere else in the Bill and pretend they never had been in this obnoxious Act. I suppose there is nobody here who really believes that when the Deputy urges repeal of the entire Act he is extremely anxious it should be repealed; and I do not think that there is anybody who will be greatly influenced by the rhetoric to which we have been treated on this matter.
I am not extremely anxious that it would be repealed, but I do care very much indeed that this Legislature, of which I have the honour to form a part, should at least conduct its legislation in accordance with the ordinary rules of legislation as accepted, and as the judge of whom I spoke some time ago, said, in all civilised countries. These Acts are law or they are not law. If they were not law five months ago, they cannot be made law by putting the third section in as a repeal section. We ought either accept this thing as having been the law, and binding this country, or reject it in toto as not binding, and re-enact as much as we think should be accepted. Do let us try to observe some form of consistency and decency in our legislation.
It seems surely only a confusion of thought. According to an Article of the Constitution all the British Statutes that were in force at the time the Constitution was enacted continued to be in force. That is so again under the Adaptation of Enactments Act subsequently passed. Now, merely because the Minister for Home Affairs used the expression that this objectionable piece of punitive legislation passed in 1920 never had the force of law, certain Deputies begin to think that that declaration repeals the Act. Of course, it does not. The Minister for Home Affairs is quite right, and historically so, in stating that it never had the force of law, in the sense that the Irish people generally did not recognise it. They refused to act under it, and the Dáil that legislated and administered so far as it could in their name had declared it was not law. But then, this is a recent thing. The Constitution and the Re-Enactment of Laws put it on our Statute Book, so to speak, and there it is, and the only way to deal with it is to repeal the sections which we do not want to operate. That, I take it, is what has been done, to retain those portions of it which are useful, because if we were to become very pedantic and very fastidious, we should undoubtedly see that the best course to follow would be to repeal the whole Act, and then re-enact whatever portion of it we require. But that is only a roundabout way of arriving at a result which is directly arrived at here by putting certain things now into the Schedule. The thing seems transparently obvious to me. I do not see really why there should be any difficulty about the matter. There may be a sentimental objection to give it so much countenance as is involved in retaining any portion, but that sentimental objection ought to have operated on our minds at the period of the Re-Enactment of Statutes.
Speaking from memory I believe one of these Acts was left in because a person got a longer time to lodge a claim. I think there were two or three days or a week in the Acts of 1919 & 1920 and that was extended by some clause or that sort, which I believe is being kept on. However, it does not come under anything that is objectionable now in either of the other Acts. We considered the other point in the way that has been suggested.
I move the following amendment:—"In the third column, third line, to delete the figure `4' and insert in lieu thereof the figure `3.' " This is merely the correction of a clerical error.
Amendment agreed.
Question put: "That Schedule 1, as amended, stand part of the Bill."
Agreed.
I move the Second Schedule.
I move the following amendment:—"In the third column, second last line, to delete the words `sections one,' and insert in lieu thereof the words `sub-section one of section one and sections.' " This is also correction of a clerical error.
Amendment agreed.
Question put: "That the Second Schedule, as amended, stand part of the Bill."
Agreed.
The next amendment on the Paper, to insert a new schedule, falls on account of a previous amendment having been defeated.
THE TITLE.
I move the adoption of the title "An Act to amend and extend the enactments relating to compensation for Criminal Injuries."
Question put: "That the title stand part of the Bill."
Agreed.