Dáil Éireann debate -
Tuesday, 24 Jul 1923

Vol. 4 No. 16

DEFENCE FORCES (TEMPORARY PROVISIONS) BILL, 1923—FIRST STAGE.

General MULCAHY

I desire to ask the leave of the Dáil for the introduction of the Defence Forces (Temporary Provisions) Bill, 1923. There are some words that could be said about the matter at this particular stage, without going into any discussion. I find myself at a time when it is possible for me to introduce this Bill, and at a time also when I am forced to realise that there will not be sufficient time before the dissolution of the present Dáil to give sufficient consideration to a Bill of such length as this Defence Force (Temporary Provisions) Bill is, and a Bill of such importance. I am between that situation on the one side, and the situation on the other that it is absolutely necessary for us to have legalised at once the position of the Army. We have an Army at the present moment that only the necessity of the situation justifies or legalises us in having, and we are disciplining it under a code of regulations that only the necessity of the present situation warrants us in putting into force. Actual justification for the maintenance of the Army, as it existed up to the present, and as it exists now, has been the necessity. The most legal sanction for its maintenance and its action has been the state of war which is now coming to a close. With the approach of normal conditions, the accomplishment of the entire submission of the Army to the civil power has to be regulated in a proper manner, and all powers to establish, maintain, organise, discipline and control the Defence Forces must be sought from the Oireachtas in the ordinary way. I have, therefore, considered the matter to see how we had best meet the situation and I have framed the Bill to be a Temporary Bill, the intention being that the Oireachtas would be asked to pass the Bill as it stands, as a temporary measure, to run for, say, a period of twelve months, when actually the Bill or a Bill on these lines could be introduced either immediately that the new Dáil comes together, or preferably in my opinion, it might be left until the beginning of next year, when the present Bill, if it were passed by the Oireachtas, would have been in operation for a short time. You would have plenty of opportunity to see the likely effect of the Bill in different directions, and we could approach the discussion of the Army Bill in the beginning of next year with sufficient time at our disposal to give it the thorough discussion it is due it would get. From the point of view of the necessity of covering the existence of the Army at the present time and of disciplining the Army in a proper way, we are faced with the fact that if there were rather a condition of things in the country in a week or two, which cannot be held to be a state of war, we have practically no means of controlling the Army.

There are five articles in the Constitution which deal expressly with the matter. Article 45 provides that the Oireachtas has the exclusive right to regulate the raising and maintaining of armed forces, and that every such force shall be subject to its control. Article 6 provides that no person shall be deprived of his liberty save in accordance with law. Article 7 provides that no person shall be tried save in due course of law, and that extraordinary Courts shall not be established, save only such military tribunals as may be authorised by law for dealing with military offenders against military law. Article 71 provides that a member of the defence forces not on active service shall not be tried by any courtmartial for an offence cognisable by the Civil Courts unless such offence shall have been brought within the jurisdiction of courtsmartial by any Code of Laws or Regulations for the enforcement of discipline which may hereafter be approved of by the Oireachtas. Article 72 provides that no person shall be tried on any criminal charge without a jury save inter alia in the case of charges against military law triable by courtmartial. The consequences of these articles of the Constitution mean that if we have not an Army Act on the lines outlined in the Bill now put before the Dáil, and if the state of war passes, officers would have no authority over their men; the men need not obey their orders unless they choose to; soldiers could desert at will without fear of consequences, and mutiny—the gravest of all military offences—would be something like a mere trade dispute or insubordination. Desertion would merely be a breach of contract. So the necessity for putting ourselves in a legal position from the point of view, particularly, of disciplining the Army will be apparent. The Bill in its present form will introduce transitory provisions which will legalise the position of the present national forces as defence forces within the meaning of the Bill, and it will give power to the Minister for Defence to make orders, rules and regulations to implement the Bill to the extent that is necessary at the present time.

The question will naturally arise in connection with a Bill, so long and detailed as this Bill is, that it would be more satisfactory, perhaps, to pass a short Bill giving general powers to the Ministry in the matter. But when you come to consider that the general powers so given must of necessity be very wide, that they are likely to be the powers that are set out in the Bill, it is much more satisfactory, I think, for all concerned that we should set out the powers that we desire to have in a temporary Bill, so that in the meantime and before the permanent Bill is introduced there will be set out plainly in one particular document the powers that we would likely be asking or that a subsequent Government would likely be asking for controlling the establishment and the discipline of the Army. I ask for permission to introduce a Bill that will deal with the matter of organising and disciplining the Army, dealing with certain matters that determine and define the relationship between the army and the civil powers and the civilian population. I ask for permission to do it at a time when we know that the fullest and deserved consideration cannot be given to the Bill, but to deal with it as a temporary measure. I would be in a position, I think, to have the Bill circulated to-night, and I would like to ask if possible to have a Second Reading, say, on Thursday.

MINISTER for HOME AFFAIRS (Mr. O'Higgins)

I beg to second.

CATHAL O'SHANNON

I do not rise to oppose the introduction of the Bill, as I am one of those who, right from the beginning of the sitting of this Dáil, urged that some such Bill should be brought in, as it was absolutely necessary, and because the Army required something that would regularise its standing and the actions taken by it. We recognise the necessity of the Bill, particularly from the disciplinary point of view. I think everybody in the Dáil will recognise its necessity from that point of view. But I do think it is rather a big job at the tail end of the session. There must have been great difficulties in the way, as the Minister says, it is a long and detailed Bill, and it must have taken a long time in drafting. At the same time I think the Minister ought to have seen to it that the Bill was brought in long ago, because it is not fair—even though it is only a temporary measure— that a long and detailed Bill, and one of such great importance, should be brought in now when we will not have the opportunities for examining it that would be desirable. The Minister has given us some light on it, but I would plead for a little more. Some of us have observed recently that there has been a tendency in the new Army, that was not observable in the old Army, of sharp distinction between certain sections, or rather classes perhaps, in the Army. Now, that may be necessary for reasons of discipline. I do not know, but I would like if the Minister would tell us what is his own conception of the position the Army should occupy. In particular in the old Army, the old Volunteers and the old I.R.A., there was not the sharp distinction between the officer and private that there seems to be in the new Army. There are armies, the old caste armies, in which that distinction is very sharp. There are others in which it is not nearly so sharp. I do not know, and we will not know, until we have the Bill before us, what the relationship will be in the new army. I would like the Minister to give us his conception, and the conception of those who are advising him, as to the relationship that will exist between the people and the Army. The Bill, as he says, is a temporary one. So far so good. But even as a temporary Bill it will certainly be a head-line for any more permanent Army Bill of the future, and for that reason I would like to protest again against the lateness in the Session at which it is introduced. I suggest that the Minister might have been better advised if, instead of the long detailed Bill that he is bringing in, he brought in a shorter Bill—one on more general lines, and not for twelve months. The Bill could be of such a nature as would get over the legal difficulties in the way for the time being, or for a few months, until another Parliament would have an opportunity of considering in full detail the regulations for the regular Army.

Mr. DARRELL FIGGIS

I am not rising to oppose the introduction of this Bill, because it has been accepted, by myself at any rate, as a sound principle that Bills of this nature should receive their First Reading. I think, however, that one ought to point out that we now get the first revision of information which was given to the Dáil so late as only a week ago. A week ago, in answer to a question I put to him, the President stated that amongst the Bills it was intended to introduce was the Army Bill. We are now informed by the Minister for Defence that the Army Bill, which we were promised a week ago, is to be postponed, and that a temporary measure is to take its place. I think we have a fairly good conception of the matters that would be covered by an Army Bill. In concluding this debate I think it might be for the service of the Dáil, if the Minister for Defence could state, a little more in detail the matters that it is intended to cover in this Bill. I am not sure if I remember him correctly, but I do not remember that in his opening remarks he stated how long it is proposed this temporary measure is to continue. I think he should state how long it is to continue, and I take this opportunity of saying that the shorter its term the better. I would like to know the heads with which it proposes to deal and wherein it would differ from the Army Bill, towards the drafting of which, I take it considerable progress must necessarily have been made.

General MULCAHY

My proposal would be that the temporary Bill would last for a period of twelve months, or until such time shorter than that period, as the Army Bill proper would be passed. I quite appreciate the necessity of making the Bill, passed under the circumstances under which I anticipate this Bill will be passed, last only for a short time. To make a Bill of this nature last for a short time means that you would have to hurry the introduction of your permanent Bill, and perhaps hurry the discussion of your permanent Bill. There is no reason why the permanent Bill should not be introduced immediately after the assembly of the new Parliament, except that you might like to wait for a short time, and see the actual effect in working of some of the provisions of the temporary Bill, and you might like to take a fairly long time to discuss the Bill itself.

The Bill before the Dáil now is actually the Army Bill as it was drafted for putting forward as a permanent Bill, with simply the introduction of a clause making it a temporary one, and the introduction of certain clauses dealing with the Reserve which it was intended originally to deal with in a separate Bill. It was anticipated it would be necessary for us in the meantime to have certain authority in connection with that matter. There is also the addition of a certain number of clauses dealing with transitory provisions, making the Forces that we have at present a National Army; making them under this Bill as a Defence Force even though they have not been recruited and attested under conditions outlined in the Bill itself. So, for all practical purposes, you have placed before you the Bill which we had intended to bring forward and have discussed as the permanent Army Bill. I will refer briefly to the matters which, it is proposed, the Bill will deal with, because I anticipate the Bill will be in the hands of members to-morrow morning.

Part I. deals with establishment, organisation, administration, appointments and conditions of service, military education, service in time of war, the power of making statutory rules and regulations, and special powers in relation to the defence of the State, in relation to the maintenance of barracks, and other buildings.

Part II. deals with discipline. It sets out various offences against military law, the nature and degree of punishment which can be awarded, arrest of offenders, the investigation of charges. The summary disposition of charges in the case of minor offences, the constitution and jurisdiction of courts-martial, and the general principles governing their procedure, confirmation of their findings and sentences, and the execution of sentences. It deals with the pay of officers and soldiers and with the power to make deductions from, and forfeit, the same by way of punishment or to make good damage. It deals with prisons and detention barracks, for military offenders, the enlistment of recruits, appointments to corps and transfer to Reserve, billeting and impressment of carriages and offences and legal penalties in respect of the same with regard to officers and soldiers and to police and civilians.

Part III. deals with the establishment, control, training and discipline of the Reserve, the calling out of the Reserve on permanent service in case of National emergency or in aid locally of the Civil Power.

Part IV. deals with the transitory provisions necessary to cover the period (probably of a couple of months duration) between the passing of the Bill and the actual establishment of the forces thereunder. It legalises the National Forces as at present in existence, provides for the exercise of the Commander-in-Chief, and the administrative and executive powers by the Minister for Defence. It continues the liability of officers and soldiers to serve in accordance with existing appointments and agreements. It provides for the application of Part II. of the Bill (Discipline, Courts-Martial, etc.) to the National Forces as existing at present, and brings them into line with the provisions of the Constitution. It, finally, gives power to the Minister for Defence to make orders, rules and regulations necessary to implement this part of the Bill.

These are the matters which the different parts of the Bill will cover. On the general question of the relationship of officers to men and of the Army to the people, the Army in any country must be a kind of crystallisation of the people. Naturally they will be the people's servants and they will be the instrument of the Oireachtas. The relationship between officers and men of the Army in any country must be a kind of crystallisation of the common sense of the people, and I have no reason to think that the relationship between the officers and soldiers in the Irish Army in 1923 and 1924 will be materially different from the point of view of the matters that the Deputy probably has in his mind from the relationship that existed between the officers and men in the Irish Army in the years 1916, 1917, 1918, 1919, 1920, 1921 and 1922. Time only must show that. The nature of the people must essentially be the same in the latter years as in the previous years, and if that is so, my theory is the relationship between the officers of our Army and the soldiers cannot be changed in any way.

CATHAL O'SHANNON

Did I understand the Minister to say that he intended the Second Reading for Thursday next?

AN CEANN COMHAIRLE

When we dispose of this stage we can take up that question.

Question put and agreed to.

General MULCAHY

I intend to ask the leave of the Dáil to take the Second Reading on Thursday. I hope to be able to circulate the Bill to-night or at latest to-morrow.

Mr. JOHNSON

On this question of the period to elapse between the First and Second Reading, the Minister hopes to have the Bill in the hands of Deputies to-morrow morning. He told us it was a long, detailed Bill, dealing with very important questions. The Standing Order, it will be borne in mind, says that when a Bill passes its First Stage, and has been circulated, four days' notice of motion must be given before its Second Stage.

I realise the Minister's desire for urgency, and that he is coming to the Dáil to ask for privileges, but I would like to find out whether, having asked the Dáil for that consideration, the Government of which he is a member is prepared to give the Dáil the same consideration, or whether we are to be treated with the same kind of consideration that we had last week. If it is the intention, generally, to treat the Dáil roughshod, as was done last week, then, I think, that the Standing Orders should be complied with, and that there should be no breach of them in these circumstances. If there can be consideration given to the Dáil, as was done pretty generally for the last six or eight months, until the last fortnight or three weeks, then I do not think there need be any opposition to the suggestion of the Minister, but I think that we ought to have an assurance that there is going to be some kind of mutual consideration.

General MULCAHY

I feel that in this matter we are all rough-ridden by circumstances. I only ask the consideration of the Dáil to have an early Reading of this Bill, because circumstances are driving pretty roughly and pretty hard in the matter of time, I understand, at present. I find it difficult to think that any section of the Dáil has really been roughly ridden on the part of the Ministry, except in circumstances in which the Ministry have been very much pressed and roughly ridden themselves. I am prepared to accept a Reading of this Bill on any date that will enable us to get it through. It is a matter which is really urgent, and which it is most important should get through before circumstances would lead up to the dissolution of this Dáil. I think the Ministry generally would appreciate very much if Deputies would meet them to the extent of allowing the Bill to be read a Second Time on Thursday.

CATHAL O'SHANNON

I would press that someone rather than the Minister for Defence would meet Deputy Johnson in the spirit in which the Deputy has shown. We are, of course, as the Minister points out, all subject to circumstances of time. We recognise the limits of time, and everything like that. But there are other things that the Minister who has just spoken does not realise as Deputies in the Dáil do, and that is that certain things have been done without as much as five minutes notice. We have no desire at all to obstruct the Minister by sticking very tightly to the Standing Orders if he wants a little ease in that matter, but there has not been the least sign on the part of the Ministry to show that the regrettable things that happened before will not happen again.

The PRESIDENT

If Deputies mean that we should take the Dáil into our confidence with regard to the measures which we are pressing for consideration, I have no objection whatever to that being done. Most of my time for the last couple of days has been taken up endeavouring so to accommodate the Dáil that due consideration should be given to the measures that have been introduced, and at the same time not to put too much labour on members of the Dáil. We, on this side, feel just as much as members on the other side what long sittings mean, and I am prepared at any time to go into the question of the consideration of the business to be disposed of if members are desirous of seeing me about that. If that be what is meant, I am prepared to see Deputies at any time from to-morrow morning. Members of the Dáil know exactly what the state of the business is that is pressing, and what the matters are that we wish to have settled and disposed of in the Dáil, and so on.

Mr. JOHNSON

The position is that we are prepared to facilitate the passing of absolutely essential Bills, which do not raise controversial issues, with reasonable consideration within the hours fixed in the Standing Orders for the transaction of ordinary business. If we are to be presented with controversial Bills, they will need to be considered, and considered very carefully, and they ought to be considered within the hours that have been found necessary during the last six or eight months for the consideration of Bills. If it is proposed to suspend Standing Orders and to have all-night sittings, and if it is proposed to move Closure Resolutions and the like, then of course there is not going to be that mutual tolerance that Ministers seek. There are limits to the physical capacity of members, and the Dáil is entitled to have an opportunity of considering Bills which it is putting its seal to. If the Minister is intending to introduce Bills of moment that raise controversial issues, they require at least a reasonable amount of consideration, and that consideration ought to be given within the ordinary hours of sitting. If the Minister tells us that there is no intention to propose long sittings or Closure Resolutions or the like, then I, for one, am quite prepared to accommodate the Ministers in the matter of this proposed short-notice motion for Second Reading.

The PRESIDENT

If the members of the various parties would undertake to see me to-morrow morning at 11 o'clock I will put before them what is really pressing in the nature of legislation. If it is pointed out that some of it is of a controversial character, and Deputies take exception to its being dealt with, I am prepared to give every consideration to that view and to recommend it to the Executive Council. I believe that there is an opportunity of finding accommodation in the matter. I think that Deputies will realise that it is our wish that the same cordial and harmonious relations that existed since we met here should be continued to the end. Members of the Executive Council are particularly anxious for that. I believe we will be able to make some arrangement whereby we can meet members of the various parties and see if we cannot arrive at some accommodation.

Second Reading ordered for Thursday next.