Before we start, in view of the importance of this Bill, and in view of the precedent which we are now seeking to establish, I suggest that we should get at least a quarter of an hour in which to frame our amendments.
Orders of the Day. - Military Service Pensions Bill, 1929—Committee Stage.
The Dáil went into Committee.
That is contrary to the motion that has been passed. We are in Committee on the Bill now.
I move:
That Section 1 stand part of the Bill.
In Section 1 the expression "the Principal Act" means the Military Service Pensions Act, 1924, and the expression "military service pension" means a pension granted under the powers contained under the Principal Act. We contend that a lot of pensions have been awarded under powers not contained in the Principal Act but under powers assumed by the Government.
I am afraid that does not come under this section.
I object to the definition on the grounds that it does not cover what happened, and some other definition will have to be sought for what the Government wants to do. The Government took extraordinary powers under the Principal Act. They took away from the Comptroller and Auditor-General powers which he had secured to him under the other Acts of the State, and they absolutely brought forward no legal evidence whatever to show they should have those powers.
I am afraid the Deputy cannot develop that argument under this section, but he can under the next section, perhaps.
We had no time in which to bring forward definite amendments to this Bill. We had hoped that it might not pass. Since we are restricted in time we have to make amendments on our feet. It is absolutely impossible for us to get in amendments to the sections to which they are appropriate. The expression in the Principal Act means the Military Service Pensions Act, 1924. I think it would have been better to say that means Cumann na nGaedheal military service pensions. As Deputy Dr. O'Dowd has shown, several applicants who had applied for pensions—
That does not come under the definition section.
I think if the Government really wanted the definition to be truthful they should say the expression "military service pension" means a pension which they granted under the powers they assumed, and which were not in the Principal Act of 1924.
The Deputy is out of order.
I would like the President to show where I am out of order.
The Deputy does not know what he is speaking about.
The President does not know, and he should have more intelligence. He knows how to get the pensions over, and he knows how to get the votes in this House when he has six pensioners present.
That is out of order.
Is it in order for the President to rule that something is out of order?
No, and I am glad to observe the Deputy's zeal for the honour and the dignity of the Chair.
I was saying, when I was interrupted by the President, that the expression "military service pension" means a pension which the Government granted, or forced the Board of Assessors to grant, under the powers which they have assumed the Board of Assessors to have under the Principal Act. The Board of Assessors will be absolutely beyond their power—
I am afraid the Deputy is going beyond the scope of the definition section. I think he will have to go on to Section 2
How can I go on to Section 2 until we have discussed Section 1?
The point is, can we discuss Section 1? If we cannot discuss Section 1 I think the Deputy ought to go on to Section 2. I think we can discuss Section 2.
I propose, as an amendment, in line 27 after the word "the" where it first occurs in the line, to insert the word "alleged." The section would then read: "The expression `the Principal Act' means the Military Service Pensions Act, 1924 (No. 48 of 1924), and the expression `military service pension' means a pension granted under the alleged powers contained in the Principal Act."
I am afraid I could not accept that.
Would it be in order in moving an amendment to defer consideration of this section to this day six weeks?
The House has decided that.
The House has decided on taking the Committee Stage of the Bill. Would I be in order in proposing that consideration of this section be deferred until after consideration of Section 2?
Not after consideration of the section has been entered upon. I think the only thing the Deputy could ask now would be for leave to move a motion to report progress.
Mr. Hogan (Clare):
Will you accept an amendment to this effect——
I want to settle Deputy MacEntee's point first.
I suppose if that is the only course open to us at this stage—
Will the Deputy read the Standing Order?
Standing Order 63. I move under Standing Order 63—
The Deputy is not moving at all.
Neither is the Bill. It is either Standing Order 88 or Standing Order 63.
Standing Order 63 refers to a Committee of the whole Dáil. It says: "A Committee of the whole Dáil may from time to time direct the Chairman to report a Resolution or Resolutions, or to make a special report to the Dáil. A motion to report progress and ask leave to sit again may also be made: Provided that the Chairman may refuse to accept any such motion which he deems to be dilatory or obstructive." I am afraid that, seeing that we have not yet been a quarter of an hour in Committee on this Bill, I could not now accept a motion to report progress.
In the special circumstances we have not had time—
Unfortunately what the Deputy is asking me to do is, by my ruling, to give my view of the decision which the House has just arrived at. Manifestly I could not do that.
Would I be in order in pointing out to the House that the Gaeltacht Housing Bill is waiting to be discussed after this?
I wish the Deputy had thought of that before.
The President has given precedence to the Gaeltacht Bill from the time it was introduced up to to-day, and now he suddenly turns round and puts it after this Bill. I want the responsibility to be placed on the President.
The Deputy will have to carry the load himself.
I want to tell him also—
That should have been raised before the House went into Committee on the Military Service Pensions Bill.
Mr. Hogan (Clare):
The amendment I would ask you to accept is this: That in line 27 the word "granted" be deleted and the word "awarded" be substituted for it. In moving this I would draw your attention to the word "granted," which means something given for nothing.
That is just what happened.
Mr. Hogan
"Awarded" means something granted as the result of an inquiry.
A Deputy
Leave it as it is.
It is in accordance with the facts.
Deputy Hogan is also interested in the Housing (Gaeltacht) Bill.
Very well. I will accept an amendment to delete the word "granted" and substitute the word "awarded."
Mr. Hogan
In moving this amendment I have in mind the discussion that has taken place this evening, and I have in mind the very strong case made by the Opposition with reference to some of the pensions awarded. I do not want it to be understood that those people who are in receipt of pensions—I am really making an ad hoc speech; I suppose that will be understood—are not awarded pensions as the result of an inquiry, and I want to give the Minister for Defence an opportunity of explaining to the House, and through the House to the people of the country, how these awards were made, and that they were awards and not grants. These people have certain sensibilities, a certain sense of dignity and honour, and my colleague—
The word in Section 4 of the Principal Act is "grant." There is no question of "award" in the Principal Act. The Military Service Pensions Act which is referred to in this Bill— No. 48 of 1924—says in Section 4 (1) "The Minister may with the sanction of the Minister for Finance and subject to the provisions of this Act grant to any person." It does not say "award." There is a distinction between the two.
Have you not accepted the amendment? Is the President now ruling that the amendment is out of order?
The Chair may always accept an amendment, but until the point arises when the Chair is putting the amendment to the Committee, a point of order may be raised about the amendment.
Although it has been accepted by the Chair?
Yes, as long as it has not been put to the Committee. That has been ruled over and over again. Up to the time it is put to the Committee, a point of order may be raised with regard to it.
The word in the Principal Act is "grant." Sub-section (4) (1) states: "Subject to the provisions of this Act grant," and later, Section 6 (1) states: "If any person to whom a military service pension has been granted." The word "award" does not come in, and although there may be a certain similarity in the two words, it is the word "grant" that is in the Act. The Minister has really no power to award; he has power to grant.
The Deputy's amendment is an amendment to the definition section. It would alter the whole tenor of the Bill.
Mr. Hogan (Clare):
Is not this entirely new section in a new Bill entitled to modify or alter words in the Act?
Not to modify or alter.
Mr. Hogan
I am not asking the President for a ruling. If the President wants to make a speech I would be quite prepared and glad to listen to him. I would be glad to hear him make a case for the pensions.
If the Deputy would deal with the word "award"——
Mr. Hogan
I submit, with all respect, that we are not dealing with that section. We are dealing with a section that amplifies, regularises and annotates, if you like, the old section, and therefore I maintain I am entitled to submit to the House that the word should be changed from "granted" to "awarded" because of the special way by which the amounts of pensions are arrived at, and the special means by which they are awarded.
I would like to submit, following Deputy Hogan, as a point of order, that his point of order is well favoured, in the sense that while the original Act did set out to grant pensions under conditions in which they would be reviewed by the Comptroller and Auditor-General——
The Deputy is now asking me to decide upon the merits of the debate we have just heard for the last couple of weeks.
No, sir.
I will not hear the Deputy on a point which is not a point of order at all.
You suggested——
I hope I did not suggest anything.
You suggested in connection with the amendment offered by Deputy Hogan, that it would alter the whole tenor of the original Act.
I did not say that. I said of the Bill, not of the Act.
Your acceptance of Deputy Hogan's amendment would mean that you would afterwards accept a new sub-section stating that wherever the word "granted" appeared in the original Act the word "award" should be substituted.
Mr. Hogan
If it is necessary to alter certain things in the Bill we might offer consequential amendments at a later stage.
This section reads:—"In this Act the expression `the Principal Act' means the Military Service Pensions Act, 1924 (No. 48 of 1924), and the expression `military service pension' means a pension granted under the powers contained in the Principal Act." I think it would be impossible to offer an amendment to line 5 of the section which would make that part of the section at complete variance with lines 2 and 3, that is to say, "the Principal Act means the Military Service Pensions Act," and then you must adapt the succeeding words in the section to the words in the Principal Act. Therefore you could not make an alteration in line 5 which would in fact remove the whole definition section away from the Principal Act already mentioned.
Mr. Hogan
Then they were not awarded; they were granted. That is a concession.
Would I be in order in moving to insert the word "alleged" at a different place? The first section would then read:—"In this Act the expression `the Principal Act' means the Military Service Pensions Act, 1924 (No. 48 of 1924), and the expression `military service pension' means a pension alleged to be granted under the powers contained in the Principal Act."
I could not receive that amendment. That would not be an amendment to the section at all.
Here it is taken for granted in the Title that all these pensions which we are now asked to put out of the purview of any other authority than the assessors have been in fact granted according to the law, while if our position was this, that it was acknowledged or that it could be held as being a matter which was open for discussion whether or not a particular pension had been properly granted under that law, but having been granted would not have to be reviewed, it seems to me we are getting into an entirely different area of discussion altogether.
We are. The amendment is out of order. I am not receiving that amendment.
Would you receive an amendment proposing the deletion of the whole section?
No, because that can be decided on the question that the section stands.
Would you accept an amendment to insert after the word "pension" in line 26 the following words: "shall be construed to read." and then the continuation of the sentence?
That is not an amendment at all. It is the same thing.
Well, it emphasises that it shall now be construed to mean. What I want to make clear—
I think that would not be an amendment. It would be the same thing.
I would like to submit another one. There is a form which is common in the House—the insertion of the words "shall mean and shall always be deemed to have meant." There is a definite signification in the Bill that it is retrospective. I want to put in an amendment to show that this is not retrospective but begins as from this instant, that it means as from now, which is the reverse of a perfectly orderly amendment which we do not want to move:—"shall mean and always has meant." I suggest that you should take an amendment which would make this apply as from now. Do you accept that amendment?
To insert "as from now"? That is what the section means.
No, sir, I suggest—
Oh, yes.
With all respect. It refers back to the previous Act.
Mr. Hogan (An Clár):
Is Deputy Flinn in order in referring to Section 2 before we have decided Section 1?
I thought he was talking on Section 1.
I object to being interrupted in this disorderly and irregular manner by the Deputy. I do think that I ought to be allowed to make a speech without being subjected to unnecessary and inconsiderate interruptions.
Standing Order 46 says:—
A Deputy who persists in irrelevance or repetition in debate and who, in the opinion of the Ceann Comhairle or the Chairman, is speaking for the purpose of obstructing business, may be directed by the Ceann Comhairle or the Chairman to discontinue his speech after the attention of the Dáil or of the Committee has been called to his conduct.
I am not suggesting that I should be the judge, but I think it is sustainable that practically every speaker so far has spoken for no other purpose than to obstruct business.
Including the President.
That is a matter for the Chair to decide, as the debate progresses, if it does progress.
The President is understood to apologise.
I will put Section 1.
Question—"That Section 1 stand part of the Bill"—put and declared carried.
Division challenged.
took the Chair.
The Committee divided: Tá, 71; Níl, 58.
Tá
- Aird, William P.
- Alton, Ernest Henry.
- Beckett, James Walter.
- Bennett, George Cecil.
- Blythe, Ernest.
- Bourke, Séamus A.
- Brennan, Michael.
- Brodrick, Seán.
- Byrne, John Joseph.
- Carey, Edmund.
- Collins-O'Driscoll, Mrs. Margt.
- Conlon, Martin.
- Cooper, Bryan Ricco.
- Cosgrave, William T.
- Craig, Sir James.
- Crowley, James.
- Daly, John.
- Davis, Michael.
- De Loughrey, Peter.
- Doherty, Eugene.
- Doyle, Peadar Seán.
- Duggan, Edmund John.
- Dwyer, James.
- Egan, Barry M.
- Esmonde, Osmond Thos. Grattan.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Gorey, Denis J.
- Hassett, John J.
- Heffernan, Michael R.
- Hennessy, Michael Joseph.
- Hennessy, Thomas.
- Hennigan, John.
- Henry, Mark.
- Holohan, Richard.
- Jordan, Michael.
- Kelly, Patrick Michael.
- Keogh, Myles.
- Law, Hugh Alexander.
- Leonard, Patrick.
- Lynch, Finian.
- Mathews, Arthur Patrick.
- McDonogh, Martin.
- McFadden, Michael Og.
- McGilligan, Patrick.
- Mongan, Joseph W.
- Mulcahy, Richard.
- Murphy, James E.
- Murphy, Joseph Xavier.
- Nally, Martin Michael.
- Nolan, John Thomas.
- O'Connell, Richard.
- O'Connor, Bartholomew.
- O'Higgins, Thomas.
- O'Leary, Daniel.
- O'Mahony, Dermot Gun.
- O'Reilly, John J.
- O'Sullivan, Gearóid.
- O'Sullivan, John Marcus.
- Reynolds, Patrick.
- Rice, Vincent.
- Roddy, Martin.
- Shaw, Patrick W.
- Sheehy, Timothy (West Cork).
- Thrift, William Edward.
- Tierney, Michael.
- Vaughan, Daniel.
- White, John.
- White, Vincent Joseph.
- Wolfe, George.
- Wolfe, Jasper Travers.
Níl
- Aiken, Frank.
- Allen, Denis.
- Anthony, Richard.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Seán.
- Briscoe, Robert.
- Broderick, Henry.
- Buckley, Daniel.
- Carney, Frank.
- Carty, Frank.
- Cassidy, Archie J.
- Colbert, James.
- Corkery, Dan.
- Corry, Martin John.
- Crowley, Fred. Hugh.
- Crowley, Tadhg.
- Davin, William.
- MacEntee, Seán.
- Moore, Séamus.
- Mullins, Thomas.
- Murphy, Timothy Joseph.
- O'Connell, Thomas J.
- O'Dowd, Patrick Joseph.
- O'Kelly, Seán T.
- O'Leary, William.
- O'Reilly, Matthew.
- Derrig, Thomas.
- Everett, James.
- Fahy, Frank.
- Flinn, Hugo.
- Fogarty, Andrew.
- Gorry, Patrick J.
- Goulding, John.
- Hayes, Seán.
- Hogan, Patrick (Clare).
- Houlihan, Patrick.
- Jordan, Stephen.
- Kennedv, Michael Joseph.
- Kent, William R.
- Kerlin, Frank.
- Killilea, Mark.
- Kilroy, Michael.
- Lemass, Seán F.
- Little, Patrick John.
- Maguire, Ben.
- McEllistrim, Thomas.
- O'Reilly, Thomas.
- Powell, Thomas P.
- Ryan, James.
- Sexton, Martin.
- Sheehy, Timothy (Tipperary).
- Smith, Patrick.
- Tubridy, John.
- Walsh, Richard.
- Ward, Francis C.
Tellers: Tá, Deputies Duggan and P. Doyle; Níl, Deputies G. Boland and Allen.
Amendment declared carried.
SECTION 2.
So much of sub-section (6) of Section 3 of the Principal Act as enacts that the findings of the Board of Assessors set out in their report shall in all cases be final and conclusive and binding upon the applicant is hereby repealed and in lieu thereof it is hereby enacted that such findings as so set out shall be and, in the case of findings set out in a report made before the passing of this Act, be deemed always to have been final and conclusive and binding on all persons and tribunals whatsoever, but subject and without prejudice to the power of the Board of Assessors to reopen any such findings under the proviso to the said sub-section (6).
In regard to this section, would you take an amendment from me on these lines? The amendment which I propose to make is as follows:—
In Section 2, line 36, after the word "power" to insert the words "and right of the Comptroller and Auditor-General to examine all papers and documents, whether confidential or otherwise, as he in his own discretion may consider necessary to enable him to fulfil the functions and discharge the duties attaching to his office, as prescribed by Article 62 of the Constitution and the Comptroller and Auditor-General's Act, 1923, and the several Acts of the United Kingdom of Great Britain and Ireland cited therein and subject also and without prejudice to the power." The section will then continue as in the Bill.
I am not accepting it.
On what grounds?
On the ground that Section 2 is the operative section of the Bill. The House has confirmed the principle of the Bill and the amendment of the Deputy is seeking to undo what the House did on Second Reading.
I submit that in this case the fact that this Bill is to make final, conclusive, and binding, on all persons and tribunals, certain findings without specifying in the Title that the powers of the Comptroller and Auditor-General are going to be limited, means that, even if the House has accepted the principle, we can move an amendment which will prevent the limitation of those powers. I contend, as this Act is virtually an Act to amend Article 62 of the Constitution, that unless the Title of the Bill specifically recites that the powers of the Comptroller and Auditor-General are going to be limited. I am entitled to move an amendment which will safeguard the powers which the Comptroller and Auditor-General has under Article 62 of the Constitution.
Perhaps the Deputy will keep to the amendment.
That is my contention, that unless in the Title of the Bill it is set forth as the object of the Bill, that it proposes in some way to restrict or limit the powers which the Comptroller and Auditor-General hitherto has enjoyed under the law and Constitution as they exist up to the moment, I am entitled to move an amendment even to the operative clause, which will safeguard and secure to the Comptroller and Auditor-General his present rights.
What the Deputy is endeavouring to move is an amendment which would practically take out or nullify the principle to which the House has agreed in Committee. I am not accepting the amendment.
May I submit that the principle of the Bill is not as clear as you think. The whole argument of the Government——
I am not concerned with argument of the Government but with what is in the Bill.
They submit——
I am not concerned with what they submit, but with what is in the Bill, and with the amendment which the Deputy asks leave to move.
I understand the Bill—if I am wrong you will correct me—to mean that the existing law, as certified by the Attorney-General, is that the Comptroller and Auditor-General has not these powers and, therefore, we must assume that this Bill must refer to somebody else.
On a question of order I am not concerned with the opinion of the Attorney-General. I am concerned with the Bill and the relevancy of the amendment. I am not accepting the amendment.
Mr. Hogan (An Clár):
Will you accept an amendment from me, namely, "In line 35, to delete the words `and tribunals whatsoever?' " The effect of the amendment, as it stands, would be that whatever irregularities or illegalities may have been committed by the Board, the Board would not be subject to any tribunal, which includes courts of law. If it is deleted it will give the courts of law such powers as they have over ordinary boards or corporations. I submit that it is a perfectly reasonable amendment and that you should allow the Dáil to express its opinion on it. Am I do assume that you accept it?
Mr. Hogan
I would like to hear the reason.
Because the Dáil decided on a definite principle in the Bill and the Deputy's amendment would have quite, but not almost, the same effect as the amendment which Deputy MacEntee asked leave to move.
Mr. Hogan (An Clár):
I submit that this is a matter on the administration of the Bill. It is a matter of bringing the Board of Assessors into the same plane as ordinary citizens who are members of corporations. It is not the principle of the Bill. The principle of the Bill, as I understand it, is that certain documents which were available to the Board shall not be available to the Comptroller and Auditor-General. That is the big principle running through the measure. In this case, if the Board of Assessors at any time did anything that could be construed as illegal, I want to ensure that that matter could go before a court of law. If the Bill stands as it is, no court of law would have jurisdiction over them. As I say, it is not a matter concerning the principle of the Bill but it is a matter of bringing them into the same plane as corporations or collections of citizens.
If the Deputy will refer to the Principal Act as well as to this Bill I think he will see what would be the effect of the amendment.
Mr. Hogan
I would like a quotation from the Principal Act which says that the Board of Assessors shall not be amenable to the ordinary law by being taken into a court——
I want to move an amendment.
Mr. Hogan
I want to know if my amendment is ruled out. If the Fianna Fáil Deputies are going to adopt the attitude of obstructing the Labour Party I will be as strong in my objection to them as Deputy Flinn or, rather, Deputy Little is to me.
I am sorry, but I thought the Deputy had given up An Leas-Cheann Comhairle as being hopeless on that point. I withdraw for a moment.
On a point of order, I want to call attention to the perfectly uncalled for personal attack made on me by Deputy Hogan. I think it is quite wrong——
I did not hear any uncalled for attack.
It was not uncalled for? I understand.
In all seriousness, you ruled out an amendment which I think is very important. Of course, I accept your ruling.
If the Deputy accepts my ruling, that is an end of it.
I am trying to explain the purpose of the amendment.
Has the Chair not given a ruling and has not the Deputy accepted it?
I am not speaking of the amendment on which the Leas-Cheann Comhairle has ruled.
I decided not to accept the amendment. Does the Deputy wish to speak on the section?
No, I wish to ask a question in regard to Standing Order 89.
What is the Deputy's point?
I am referring to Standing Order 89 which says:—
It shall be an instruction to all Committees to which Bills may be committed that they have power to make such amendments therein as they shall think fit, provided such amendments be relevant to the subject matter of the Bill; but that, if any such amendments shall not be within the title of the Bill, they amend the title accordingly, and report the same specially to the Dáil: Provided, however, that no amendment shall be proposed which is in conflict with the principle of the Bill as read a second time.
I have given a ruling. The Deputy stated that he has accepted that ruling. Therefore, it cannot now be further debated.
Very well then. Am I to speak on the section?
I wonder would you accept an amendment in these terms: after the words, on all persons and tribunals whatsoever, to insert: "save and except the High Court of Saorstát Eireann"?
I think that is the same as Deputy Hogan's amendment.
I think it is not exactly.
It is practically the same.
I think not. Deputy Hogan's amendment had a wider scope. This is restricting it to a very narrow ambit. You have there an authority that certainly this House could accept. The High Court—the Supreme Court if you prefer it—at any rate, the High Court would be accepted as an authority by this House, and would, I think carry very great weight in its decisions on any matter, especially in a matter of this kind, and an appeal to the Supreme Court would be open. There should be an appeal. I think this differs materially from Deputy Hogan's amendment, in that it provides some way by which some authority in the country would have a say in the matter. After all, this House cannot very well go into the details of any case, and this would provide some authority. This is no attempt at obstruction. In all seriousness, I think that some authority of that kind ought to lie in the Court, to give serious consideration, as undoubtedly the High Court would, to any question of this kind put before it. I think it is wise that there should be some authority in the country open to reconsider matters of this kind.
I submit that exactly the reason that induced you to rule Deputy Hogan's amendment out of order should induce you to rule this amendment out of order, and that is that it goes outside the principle of the Bill, as passed on Second Reading. The fact that it gives power to one court and not to a number does not alter the principle upon which you acted.
I submit that Deputy O'Kelly's amendment raises a very important issue. Under Article 65 of the Constitution the judicial power of the High Court is, it is stated, extended to the question of the validity of any law having regard to the provisions of the Constitution. Under Article 62 of the Constitution, the Comptroller and Auditor-General has been appointed and it is stated that he shall control all disbursements and shall audit all accounts of moneys administered by or under the authority of the Oireachtas, and shall report to Dáil Eireann at such stated periods to be determined by law. If the objection of the Minister for Education does express the mind of the Executive Council in this matter, which I take leave to doubt, considering the affection in which the Executive Council hold the Constitution, then it would appear to me that one of the purposes of this Bill not disclosed in the Title and not discussed upon the Second Reading, would be to oust the jurisdiction of the High Court under Article 65 of the Constitution. Some time ago—I think it was in connection with a prosecution under the Treason Act early in 1927—a judge of the High Court, Mr. Justice Hanna, expressed the opinion that the Constitution should not be amended, so to speak, by a side-wind —that Bills of this nature, affecting the fundamental Articles of the Constitution, should not proceed through this House in any other way, or under any other guise, than that of constitutional amendments. It would appear to me, if the Minister for Education does really express the mind of the Executive Council on this matter, that the real purpose of the Bill is, first, to nullify the effect of Article 62 of the Constitution and, secondly, to oust the jurisdiction of the High Court to determine the validity of any law, including this law. In order to safeguard against that possibility, Deputy O'Kelly's amendment ought to be considered. I put that to you, and I suggest it is a very serious point.
The principle of the Bill is, that the findings should be final and conclusive and binding on all persons and tribunals whatsoever. The House agreed to that. That is the main principle of the Bill, and Deputy O'Kelly's amendment is just somewhat narrower than Deputy Hogan's amendment, which was ruled out by the Chair.
I submit that the Title of the Bill has not been put to the House at all yet—the House has not yet agreed to the Title of the Bill.
I am speaking about the principle of the Bill and not the Title.
It is the Title you are ruling on.
The really important point which Deputy O'Kelly has raised was not adverted to during the Second Reading. It did not occur to anyone what would be the effect of these words, "final and conclusive and binding on all persons and tribunals whatsoever" until Deputy Hogan raised the point. It is a most important issue.
The Deputy will realise that the Chair is not concerned with the merits of the matter.
You have jurisdiction in this matter.
Not so far as the merits are concerned, but purely on the question of order.
I submit, in view of the importance of the matter, that you are almost bound to accept the amendment in order that that point may be finally determined before the Bill leaves the House.
The Chair is concerned only with the question of order and not with the importance of the matter.
This matter was not adverted to before. In view of your ruling, will you permit me under Standing Order 63 to move to report progress?
With all respect, might I put it to you that in deciding to rule out this amendment the Chair has taken upon itself almost alone to legislate? The decision on the Second Reading of the Bill did, in a general way, adopt the principle of the Bill, but surely, if proper time were given for amendments a matter of this kind would certainly have come up, and the House would have had time to consider the very important legal and constitutional issue raised. Although there were numerous and long speeches on the Second Reading, this point was not referred to by any speaker and, therefore, might be said not to have been before the House. It is a very important constitutional and legal issue that is raised, when a decision of that kind comes from the Chair, that we are precluded even from getting a vote of the House on a very important issue of this kind. I put it to you, with all respect, that the Chair ought to allow this to go to the House, at any rate, and not take on itself the responsibility of precluding, if this Bill becomes an Act, any citizen who feels aggrieved by the passage of the Bill, bringing the matter into the courts to have it tested and a decision taken. I think it is a very serious responsibility and, with all respect, I say that the Chair would be wise to allow the House to vote upon it.
I take it that the amendment is ruled out of order?
On that point I have already said I could not accept Deputy O'Kelly's amendment. I do not want to limit either debate or the amendments any more than is absolutely necessary. Of course Deputies are under a certain disability that they have to consider amendments without notice. Perhaps it would be better for Deputies, and even for the Chair, if we had more time. But I am quite clear that Deputy O'Kelly's amendment is in principle the same as Deputy Hogan's, except that it is narrower, and I have to rule Deputy O'Kelly's amendment out practically on the same ground as I ruled out Deputy Hogan's amendment.
Take me as making a very strong protest against the arbitrary action of the Chair in ruling out a matter which, if there was time, would have got very serious consideration from the Chair. Amendments which are sent in in the ordinary way are naturally considered, and the Chair gets legal advice if necessary in connection with them. That is the Chair's own look-out. At any rate, the Chair gives serious consideration to matters of this kind. It is very serious to take from the courts of this country any jurisdiction in a matter of this kind. I know the Chair is in as difficult a position as we are, owing to no notice being given of amendments of this kind, and I think the Chair would be wise in allowing the House to vote upon this very important matter. If there is any doubt in the Leas-Cheann Comhairle's mind about this matter—and I do not know whether there is or not—I think the safest course, if I might humbly advise the Chair, would be to let the House take upon itself the responsibility, and not to ask the Chair to take that responsibility, which is an unfair responsibility to ask the Chair in the circumstances to assume. I think it would be safer for the House and the country generally if the Chair would put that responsibility upon the House and not assume so serious a position itself.
I have given serious consideration to the Deputy's amendment. I have treated it quite seriously and given it as serious attention as time will allow. It is not a question of the responsibility of the House; it is the responsibility of the Chair. The Chair cannot put the responsibility that belongs to the Chair on a question of order, upon the House. A question of order cannot be decided by anyone except the Chair.
I want to remind the Leas-Cheann Comhairle that when this Bill was debated on Second Reading——
I definitely ruled upon Deputy O'Kelly's amendment. Is the Deputy now dealing with the section?
No, not yet.
Deputy O'Kelly has raised a serious point, and accordingly I now ask leave to move under Standing Order 63 to report progress in order to report to the Dáil that a question has arisen in Committee as to whether the jurisdiction of the High Courts as set forth in Article 65 of the Constitution will be affected or is affected by Section 2 of this Bill and the Title to the Bill, which sets forth that the findings of the Board of Assessors shall be deemed always to have been final, conclusive and binding on all persons and tribunals whatsoever. Deputy Hogan has raised the point as to whether tribunals, in that instance, might be held to be the courts set up under the Constitution. Deputy O'Kelly has gone further, and in order to safeguard the powers of the High Court in the matter has suggested the insertion after the words "all persons and tribunals whatsoever" of the words "save and except the High Court."
You, sir, have ruled that you cannot accept such an amendment because you feel that the House has already decided on the principle of the Bill, and that the findings of this Board of Assessors would be binding even on the High Court. That, I take it, would be the effect of your ruling if Deputy O'Kelly cannot insert in the section words that will save the powers of the High Court. Then I take it that your opinion is that the House has already accepted the principle that the findings of the Board of Assessors are to bind even the High Court. As I pointed out, the question as to the jurisdiction of the High Court to re-open these matters was never referred to in the debate on the Second Reading because it did not occur to any person until Deputy Hogan raised the point that it possibly might arise. Against that we have your ruling, which shows that you feel that the jurisdiction of the High Court would be affected by the passage of this Bill, because if Deputy O'Kelly's amendment were not against the principle of the Bill the powers of the High Court would not be affected, but if it is against the principle of the Bill obviously the appeal to the jurisdiction of the High Court would be affected. As I pointed out already, a learned judge in the High Court has very severely criticised the practice of amending the Constitution by a side wind. When dealing with the prosecution brought under the Treason Act in 1927 he stated that the Constitution should not be amended except by an Act brought in specifically for that purpose. If the ruling of the Chair in this instance is right—if any amendment that would reserve to the High Court its existing jurisdiction is contrary to the principle of the Bill, then Article 65 of the Constitution is amended, and that is a very serious matter. For that reason I am asking permission to move that, as a question has arisen in Committee as to whether the jurisdiction of the High Court as set forth in Article 65 of the Constitution is affected or prejudiced by Section 2 of the Bill the Dáil be asked to reconsider the matter and to give a decision for the guidance of the Committee.
I rise to support the motion moved by Deputy MacEntee. It was made clear during the course of the debate that this Bill was expressly for the purpose of making clearer what was the present existing law. It was contended continually by two Ministers that there was no change being made in the law but that it was simply clearing up a point that was at issue. All the Ministers had to go on was the opinion of their Counsel, the Attorney General, and an opinion is not a decision. They choose not to arrange as they might have done by agreement to bring the matter before a judge. It is constantly done. A friendly action could have been brought by the Comptroller and Auditor-General. By agreement the matter could have been submitted to a judge and the law finally tested by a case, but that course was not taken. The course adopted was to make the existing law clearer by a further Act. Now I take it that in the minds of the Ministry they did not think in any way that they were passing an Act which is repugnant to the Constitution as it at present exists. Now we have discovered that it may be repugnant on at least two points. The most important of these is the interference with the judiciary. I think that this is not a mere matter for amusement. This is not a matter merely of obstruction. The whole question of the Bill is a very serious one. Men who at an earlier stage took a conscientious view of this matter, who in this House disassociated themselves from voting on this Bill at an earlier stage as men who have some regard for their honour, should not at this stage wash their hands of the Bill and vote automatically simply because we are going into the Committee Stage. I suggest it is the duty of everyone in this House to consider this as a big constitutional issue and not merely as a sort of matter of detail which can be dismissed with a smile.
I am accepting Deputy MacEntee's motion, that progress be reported.
Question put.
The Committee divided: Tá, 58; Níl, 70.
Tá
- Aiken, Frank.
- Allen, Denis.
- Anthony, Richard.
- Blaney, Neal.
- Boland, Gerald.
- Boland, Patrick.
- Bourke, Daniel.
- Brady, Seán.
- Briscoe, Robert.
- Broderick, Henry.
- Buckley, Daniel.
- Carney, Frank.
- Carty, Frank.
- Cassidy, Archie J.
- Coburn, James.
- Colbert, James.
- Corkery, Dan.
- Corry, Martin John.
- Crowley, Fred. Hugh.
- Maguire, Ben.
- McEllistrim, Thomas.
- MacEntee, Seán.
- Moore, Séamus.
- Mullins, Thomas.
- Murphy, Timothy Joseph.
- O'Connell, Thomas J.
- O'Dowd, Patrick Joseph.
- O'Kelly, Seán T.
- O'Leary, William.
- Crowley, Tadhg.
- Davin, William.
- Derrig, Thomas.
- Everett, James.
- Fahy, Frank.
- Flinn, Hugo.
- Fogarty, Andrew.
- Gorry, Patrick J.
- Goulding, John.
- Hayes, Seán.
- Hogan, Patrick (Clare).
- Houlihan, Patrick.
- Jordan, Stephen.
- Kennedy, Michael Joseph.
- Kent, William R.
- Killilea, Mark.
- Kilroy, Michael.
- Lemass, Seán F.
- Little, Patrick John.
- O'Reilly, Matthew.
- O'Reilly, Thomas.
- Powell, Thomas P.
- Ryan, James.
- Sexton, Martin.
- Sheehy, Timothy (Tipperary).
- Smith, Patrick.
- Tubridy, John.
- Walsh, Richard.
- Ward, Francis C.
Níl
- Aird, William P.
- Alton, Ernest Henry.
- Beckett, James Walter.
- Bennett, George Cecil.
- Blythe, Ernest.
- Bourke, Séamus A.
- Brennan, Michael.
- Brodrick, Seán.
- Byrne, John Joseph.
- Carey, Edmund.
- Collins-O'Driscoll, Mrs. Margt.
- Conlon, Martin.
- Cooper, Bryan Ricco.
- Cosgrave, William T.
- Crowley, James.
- Daly, John.
- Davis, Michael.
- De Loughrey, Peter.
- Doherty, Eugene.
- Doyle, Peadar Seán.
- Duggan, Edmund John.
- Dwyer, James.
- Egan, Barry M.
- Esmonde, Osmond Thos. Grattan.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Gorey, Denis J.
- Hassett, John J.
- Heffernan, Michael R.
- Hennessy, Michael Joseph.
- Hennessy, Thomas.
- Hennigan, John.
- Henry, Mark.
- Holohan, Richard.
- Jordan, Michael.
- Kelly, Patrick Michael.
- Keogh, Myles.
- Law, Hugh Alexander.
- Leonard, Patrick.
- Lynch, Finian.
- Mathews, Arthur Patrick.
- McDonogh, Martin.
- McFadden, Michael Og.
- McGilligan, Patrick.
- Mongan, Joseph W.
- Mulcahy, Richard.
- Murphy, James E.
- Murphy, Joseph Xavier.
- Nally, Martin Michael.
- Nolan, John Thomas.
- O'Connell, Richard.
- O'Connor, Bartholomew.
- O'Hanlon, John F.
- O'Higgins, Thomas.
- O'Leary, Daniel.
- O'Mahony, Dermot Gun.
- O'Reilly, John J.
- O'Sullivan, Gearóid.
- O'Sullivan, John Marcus.
- Reynolds, Patrick.
- Roddy, Martin.
- Shaw, Patrick W.
- Sheehy, Timothy (West Cork).
- Thrift, William Edward.
- Tierney, Michael.
- Vaughan, Daniel.
- White, John.
- White, Vincent Joseph.
- Wolfe, George.
- Wolfe, Jasper Travers.
Tellers: Tá, Deputies Boland and Allen; Níl, Deputies Duggan and Doyle.
Question declared negatived.
And it being 10.30 p.m. the Dáil went out of Committee.
Progress was reported, and leave was asked to sit again.
Ordered: That the Committee sit again on Friday, 6th December, 1929.