I move:—"That the Bill be received for final consideration."
PUBLIC BUSINESS. - FOURTH AND FIFTH STAGES.
Question put and agreed to.
I move:—"That the Bill do now pass."
As this is the last opportunity that the Dáil will have of commenting upon this Bill before it leaves this House and goes to the Seanad, I should like to draw the attention of the Dáil, and also of the Minister, to one or two aspects of the Bill which I hope may receive some consideration. As was stated on previous occasions, among other objections taken to this Bill by myself and others was the fact that it was a retrospective measure. That in itself, I submit, is a distinct blot upon the Bill. As has been stated, and I do not think can be reiterated too often, retrospective Acts, no matter what may be their urgency, are from their very nature distasteful and in every way repugnant to the principle of Parliamentary government. This measure is admittedly, on the face of it, retrospective. All retrospective legislation tends to a certain amount of insecurity and instability. There is no one in any walk of life, whether he be a farmer, a professional man, or a business man, who may not with some amount of reason feel that his position may be assailed to-morrow in regard to rights that he enjoys to-day and which he has sought to exercise previously. This measure, on its face, proposes to take away from a certain individual in the Saorstát a right which, though it may not have been apparent to Ministers and others who were aware of certain undertakings which were given at the time of the framing of the Constitution, yet certainly was present in the minds not only of ordinary individuals but of those who were called upon to interpret the law of the State. When this man Lynham sought legal advice, the only advice that could be given to him by his legal advisers, on the face of Article 66 of the Constitution, was that he had a right to petition the Privy Council for special leave to appeal. They did not know anything concerning the undertaking which has since been divulged by the Minister for Justice. It would be hard to expect them to know that. They interpreted the Article of the Constitution as it is now and as it was then. The right was presumed to be in existence, and this man Lynham took advantage of it. In taking advantage of it he was put to a considerable amount of trouble and expense. The effect of this Bill is openly stated to be to take away the right which existed at the time that Lynham took action—to take it away not alone in respect of the future, but also in respect of the past. I would appeal to the Minister for Justice, if he does persist—as it is evidently his intention to do—in retaining the retrospective character of this Bill, to have some regard, by way of compensation or otherwise, for this individual, Lynham, who believed that the course he adopted was the right course. In other words, if we are going to take away, by this measure, the right which Lynham had every reason to believe was his, and which he endeavoured to exercise, it would be only fair that he should be reimbursed the expense which he has been put to. I put that suggestion to the Minister, and I put it by way of appeal.
I should base my general attitude on the retrospective character of this Bill on different grounds. This Bill, in the first place, is intended as a gesture to the citizens of the Free State. It is intended as an indication of the view of the present Government that in future no appeals should be brought before the Privy Council. In the second place, it is presumably intended as a gesture to the Privy Council—that it is the wish of the Free State Government that no such petitions should be entertained by that Council. As regards the first of these gestures—that to future litigants—I would suggest that that would be as well carried out, if not better, by making this Bill an ordinary measure dealing with the happenings of the future. If the retrospective words were deleted from this Bill, it would still act as a deterrent to future litigants desiring to seek leave to appeal. Secondly, if the Bill were not made retrospective, it would probably secure the desired end by having the question brought before the Privy Council themselves. If the retrospective words stand, what will be the result? The case will never come before the Privy Council. The case has already been admitted by them to come within the four corners of the statement made by Lord Haldane. But if this Bill is made retrospective, Lynham, though he has got permission to bring his case before the Privy Council, will take no such course. What will probably take place will be that the other party, Butler, will move that the case before the Privy Council be dismissed with costs. The plaintiff not putting in an appearance, the case will be dismissed with costs against him. That means that the case will never be considered by the Privy Council. It means, further, that our view, which we desire the Privy Council to be informed of— that we do not wish this class of case to be brought before them—will never be brought formally to their notice. If the Bill is not made retrospective, the course will be a different one. The case will be taken up by the Privy Council, in due course, and the Privy Council, when they have heard it, will have the knowledge that we have passed this Bill, will have the knowledge that no matter how they decide this particular case of Lynham and Butler, all future cases of a similar nature—especially cases involving the same point—will be dealt with according to the Act which we are now asked to pass.
The result will be, perhaps, the same —that they will not, in view of the intention which we are about to express by the passage of this Bill, construe the Act in a certain way, but they will know that it is the intention of the Government of this country that the class of case which they have already admitted to come within the scope of the definition, as laid down by Lord Haldane, shall not be a class of case which they will admit in the future. I submit, therefore, it would be better to omit the retrospective words, both from the point of view of the gesture to the people of this country that they should not pursue this line of action and from the point of view of the gesture to the Privy Council who will have to decide whether, in view of the action we have taken, they are going to proceed with the matter. Apart from these two grounds, there is the more general ground that retrospective legislation in itself is bad. There is no immediate or over-riding necessity for it in this case. This man has been victimised, and he will be penalised unless we make some provision for him. It was through no fault of his own that this position came about. He was seeking to exercise a right which presumably was there. It would be better, in all the circumstances—better for us in the action we are taking to show the Privy Council what our intentions are, better that the Privy Council should formally consider the matter and better for the unfortunate litigant in the case —if we were not to make this measure retrospective. I presume that the Minister and his advisers have made up their minds on the matter already and that they are determined to retain the retrospective character of this measure. In the circumstances, I would appeal once more to the Ministry that they should do something to provide compensation for the individual who took advantage of what he and his law advisers considered his right.
I would like to support Deputy Redmond's appeal, in so far as it refers to a specific injustice to an individual. I had considered putting down amendments that would remove the words making this Bill retrospective, but I came to the conclusion that it is the general desire of the Dáil, and of all parties in the Dáil, to strengthen and support the Government in dealing with this particular issue. In view of the fact that this is not only a case of Lynham v. Butler, but a case of Saorstát Eireann, I was of the opinion that this measure should pass through the Dáil without division and without amendment. I still adhere to that. Equally, I think there were in all quarters of the Dáil, from Deputy Gorey, Deputy Johnson, and from different benches, expressions of doubt as to how far we were justified in making the Bill retrospective, and in doing an admitted unfairness to an individual by depriving him of a right he sought to exercise under the Constitution. I do not know if the Minister for Justice is familiar with Wagner's opera, "Valkyrie." There is a similar situation there. When two men are sent to fight out an issue, Wotan, the father of gods and men, comes with a magic spear and shatters the sword of one of the parties and renders him helpless. The Minister for Justice has shattered the sword of Lynham. Lynham's counsel will be left with no defence to make, and left in no position but to accept defeat. The Minister for Justice has a magic spear, and I think that the Dáil desires in this issue that the magic spear should be unsheathed, but it does not wish to set aside generosity to the fallen. The Minister for Finance on Second Reading said that he would be prepared to meet the question of injustice to an individual in a different way. If he found it possible to amplify those words on this stage I think the Dáil would be glad. I think it may be reasonable to say that when a man goes to law he counts the cost. He knows that counsel are not feed for nothing. It may be reasonable that in this case he should pay the cost, but, in view of the fact that he has been deprived of an opportunity of meeting the case, I think his costs should be met by the State. I think the Government might well meet this matter in a generous spirit.
I would like to make my own view clear. It accords very much with the statement of Deputy Bryan Cooper. We have agreed that the issues raised are far surpassing the apparent issue in Lynham v. Butler. We have agreed to what we consider to be an undesirable procedure, to do a little wrong in order to do a great right. One of the factors that persuaded me—shall I say, one of the factors confirming the general opinion—was the statement of the Minister indicating that they might be prepared to consider the remedying of a specific monetary loss which the plaintiff in the case had incurred owing to the exercise of what was obviously a legal right. I maintain that view, and I think the Minister's intent on the occasion of the last discussion should be amplified, and we should have some indication that the personal issue is not going to be allowed, in any other place than this, to prejudice the bigger issue raised in the contest. I think that the general feeling of the House is that the judgment of the Court of Appeal should have been considered as final and that we are affirming that it is to be final, but that, in view of the circumstances, the plaintiff in the action was justified in taking advantage of a legal privilege. Though it might have been against the will and wishes of the people of this country, still it was a legal privilege, and if he is deprived of it after taking action any expense incurred should not have to be borne by him. Therefore, I join in the representations made by Deputy Bryan Cooper and Deputy Redmond in this matter.
Deputy Redmond apparently realises that from our point of view the Bill would be of very little, if indeed of any, value without its retrospective aspect. Personally, if an amendment had been put forward and had been carried deleting the retrospective clauses in the Bill, I would have been scarcely inclined to proceed further with the matter. The object of this Bill has never been concealed by me or by the Executive Council. Its object is to prevent cases such as Lynham v. Butler going as an open issue to the Judicial Committee of the Privy Council. Retrospective legislation, of which the Deputy spoke now as on Second Reading, is, and ought to be, a rare thing, but it occurs. It occurs in other Parliaments, and I think it always will occur, whenever an issue sufficiently grave to call for it arises. There has been retrospective legislation in the British Parliament when the decision of the Courts in income tax cases was adverse to the Government. There is a well-known case of Bowles v. the Bank of England, to meet which the Government hurried a Bill through both Houses. Within the last two years there has been the case where it was decided in the Courts that the bonus on civil servants' salaries was not subject to income tax. There was very hasty retrospective legislation to meet that. Both of these Bills were to meet financial loss. In this case there is a prospect of loss, not financial, loss of status, but a grave encroachment on a particular constitutional position that has been won for the people. We are as justified in introducing retrospective legislation to meet that as the British Government and Parliament were in passing legislation to obviate a serious financial loss, because unquestionably ground would be lost and a very grave and disastrous precedent would be set if a case such as Lynham v. Butler went as an open issue to this Judicial Committee of the Privy Council, and we have shown that we are prepared to take very strong and very exceptional steps to prevent that happening.
On the question of the equities that may arise as a result of the special actions that were taken, the Minister for Finance, on Second Reading, indicated that we are prepared to consider that, and the representations in which several Deputies joined will be a factor. It is clear that the view is that whereas it may be necessary for us to take this exceptional action, still in the case of the individuals who may be said to be damnified as a result, some special consideration is due from the Government. It will not, and could not, of course, be confined to one party in the case, inasmuch as the result of this Bill will be to render the hearing of this particular petition utterly nugatory. Consideration then will have to be given in the case of the two parties to the litigation.
I do not think that I have much to add. Nothing that we have not discussed very fully on Second Reading has been raised at this stage. I would like to say generally that this Bill has been very fairly met by the Dáil and by all parties in the Dáil. It has been very reasonably met. I recognise that it would have been very easy for Deputies to challenge a division on Second Reading and muster a small but significant minority against the Bill. I recognise that it would have been easy to put down an amendment for the Committee Stage to delete this retrospective clause, and that it would have been possible to produce arguments plausible enough in favour of it. Neither of these things have been done, and in so far as they have been left undone it is something that the Executive Council appreciates. In particular I am glad that, in this House at any rate, the extraordinary plea has not been made against the Bill that it represents an infringement on the rights of some undefined minority. That plea cannot stand examination. That plea contains implications of an extremely offensive nature, either in relation to the Supreme Court here or in relation to the Judicial Committee of the Privy Council, because if it means anything it can only mean this: either that the Supreme Court here cannot be relied upon to administer the law impartially and impersonally in any issue that arises, or that the Judicial Committee of the Privy Council can be relied upon to do otherwise than that, can be relied upon to lean in a particular case towards a party of a particular complexion. That is an utterly hollow, unsound and worthless allegation against this Bill, and it has been left unsaid here.
There is no question of minorities or majorities in the Bill. It has simply raised the one issue, and that is as to whether we desire that petty domestic issues, in no way affecting the relations, inter se, of the constituent members of the British Commonwealth of Nations, shall be determined, and finally determined, here by the Court of our own State. The Dáil has shown in its treatment and in its consideration of this Bill that the mass mind of the Dáil, regardless of party lines, is against the hawking of litigation out of this country over to another Court, and I think that that will be a factor, and a very important factor, in guiding the exercise of this discretion in the future, as long as that discretion continues to survive.
Question put and agreed to.
Ordered that the Bill be sent to the Seanad.