Dáil Éireann debate -
Thursday, 13 Feb 1930

Vol. 33 No. 2

University Education (Agriculture and Dairy Science) Bill, 1929. - Military Service Pensions Bill, 1929—Committee (Resumed).

Debate resumed on 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Assessors set out in their report shall in all cases be final and conclusive and binding upon the applicant is hereby repealed and in lieu thereof it is hereby enacted that such findings as so set out shall be and, in the case of findings set out in a report made before the passing of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).

Mr. Aiken

The whole principle of this Bill is contained in Section 2. As we believe it would be a disastrous thing for the Dáil to agree to, we want to remind the House of the principle which is involved in this Bill and the dangers inherent in it. If anyone, having heard our criticism of the Bill on the Second Reading Stage, took pains to read up the Constitution he would find that Article 62 is as follows:

"Dail Eireann shall appoint a Comptroller and Auditor-General to act on behalf of the Irish Free State/Saorstát Eireann. 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 stated periods to be determined by law."

Now, the Comptroller and Auditor-General in this case, if we pass this Bill, is not to be allowed to see the documents upon which the proper audit of the accounts of the Department of Defence depends. He is going to be prevented from seeing any records showing the services rendered by the individual pensioners, whether the service had, in fact, been given in a military way, or the duration of the service. If we come to the powers set out in the Bill to be given to the Department of Defence, there is no reason in the world why we should not in the future be asked to give similar powers to the Minister for Finance, to the President, to the Minister for Local Government and Public Health or to anybody else.

In this Bill we are definitely precluding the Comptroller and Auditor-General from seeing all the accounts which are necessary to enable him to make a proper audit. In the future, some other Minister may have the impudence to come along and ask the Dáil to agree to pass his Estimates and pass his accounts without the Comptroller and Auditor-General going into them. The principle of democratic Government would indicate that the Comptroller and Auditor-General has the right to see all accounts and audit them in a proper manner. The Comptroller and Auditor-General is not a creature of the Ministry, and he is not appointed by the Ministry. He is appointed by the Dáil to look after the Ministry. The Ministry do not furnish the funds which they handle. The funds are provided by the people, and the people have appointed representatives who, in their turn, have appointed the Comptroller and Auditor-General to look after the disbursement of public funds by the Ministry. And we, in this instance, give authority to the Pensions Board to pay out sums without being subject to the authority of the Comptroller and Auditor-General.

Deputies who were present during the Second Reading Stage will remember that the Minister took very little trouble to reply to the allegations that were made, that the payment of these pensions was rather to provide future political services for Cumann na nGaedheal than to reward past military services. In proof of that, the members of the Fianna Fáil Party produced evidence, as far as they were allowed to produce evidence under the ruling of An Ceann Comhairle. However, without mentioning names—and they were precluded from mentioning names—they brought forward certain cases within their own knowledge showing that the persons who had been awarded pensions had not given the services required, or that they had not served during the prescribed period. Deputy G. Boland mentioned one case of a man whom he discovered on the list of pensioners, drawing a pension for services during the Black and Tan War, and he proved from his own knowledge that this man gave no services at all during the Black and Tan War. Deputies must remember also that it was almost impossible for the Finna Fáil Deputies to examine the cases adequately.

A couple of years ago we asked for a list of the pensioners. We pressed for that list, and all we got was a long list of names—just the names of the pensioners, the amounts received, but no further particulars whatsoever other than the county in which the man resided. It was impossible for anyone who wanted to find out how public funds were spent to locate the pensioners. There are thousands of people of the same name in any county given in the list of pensions. There were cases which Deputies located. Deputy Ward discovered some cases in his constituency where the pensioners did not receive their pensions until the period between the June and September elections, 1927. We all know the delicate situation that existed in Monaghan as far as the Cumann na nGaedheal Party were concerned, between the June and September elections in 1927. Ministers made no effort to prove that the giving of these pensions at that time had any relation to the position of the Minister for Finance (Mr. Blythe) in the County Monaghan. I would like if the Ministers would give some explanation to the Dáil as to why if these men were entitled to pensions in 1927 they did not receive them four years previously? I would like to know why it took them until 1927, when the Minister for Finance was in a tight corner in Monaghan, to discover that these men were entitled to pensions? It is a ridiculous thing to ask the Dáil to pass moneys which have been used by the Cumann na nGaedheal Party to secure their political power here in this country. I hope the Dáil will have sense enough not to sanction such a proposal.

Mr. Flinn

From what I have heard in the discussion and debate here and from different people through the country, there seems to be a prima facie case that in certain cases pensions have been awarded under circumstances in which they should not have been awarded. That is my summing up of the position, and it is not in any sense a prejudiced opinion. A particular case came to me with which, if it were in relation to anything else, I would be thoroughly dissatisfied.

Every case which was mentioned in the House seemed to me to be almost conclusive as an individual instance of misuse. I am not going to say what proportion of cases has been wrongly dealt with. I have no means of knowing, but, having regard to the smallness of the amount of information which was in the hands of those who tried to check it, the number of individual doubtful cases that have been brought forward seem to me to throw doubt upon the whole procedure of the Commission or whatever it was that was set up. In a case of that kind, where one wanted to form an honest judgment, where one had instances which on the face of them seemed to be wrong, one would naturally look back and ask what was the constitution of the court which decided these things. For instance, if you found that the constitution of the court was itself prima facie good, if you found that the personnel of the court was one which obviously could claim a right to be regarded as judicial and impartial, then you would be inclined to modify the judgment which you would form on the particular instances that were put before you. One would say:—"Well, perhaps, having regard to the authority, the dignity and the impartiality of that court, we are entitled to assume that there were circumstances in relation to even those individual cases which might make us give them the benefit of the doubt." One would want to have the number of instances of apparent miscarriage which were given multiplied, in order not merely to indict the procedure but to indict an obviously impartial court. When, however, you find that the evidence and implications of individual instances are backed up by the actual composition of the court so that one would naturally expect from a court so composed such results, by exactly the same law as you would modify the implications of a number of individual instances when faced by an impartial board, you must multiply the effect of individual cases that are given by the lack of authority and the lack of impartiality of the court. Does anyone suggest that the Chief Whip of a political party——

An Leas-Cheann Comhairle

The Deputy must not criticise the personnel of the Board.

Mr. Flinn

Well, the composition of the Board does fall within the knowledge of the House. Adverting deliberately, individually, from your own knowledge to the composition of the Board——

An Leas-Cheann Comhairle

The Deputy must not criticise the composition of the Board of Assessors.

Mr. Flinn

—and ask yourself whether——

An Leas-Cheann Comhairle

The Deputy must not criticise the Board of Assessors.

Mr. Flinn

Right. We must work within our limitations. If the Board, however composed, is to be immune from the supervision or review of any possible court and is to be specifically immune from the supervision of the watch dog appointed under the Constitution for the purpose of reviewing the legality of payments made out of the Treasury of this State, I, for one, am not satisfied on the evidence which has been given that there has been even general acceptance by the reviewing authority of the principles under which the reviewing authority was told to act. Now let us assume for one moment that, instead of this Bill being what it is, it was a Bill to assert the existence of a principle, in the absence of the acceptance of which this Bill ought never to have been introduced, let us assume for one moment that the particular clause with which we are dealing was the reverse and that it did say that the Auditor-General should examine these things and if he did examine them and did find evidence that an individual applicant to his knowledge in his statement of claim had claimed something which he knew to be false and out of which he had got benefit, then these individual beneficiaries would be liable to criminal prosecution. If, further, the Auditor-General, on going through these things, found that to the knowledge of the court the evidence on which those pensions were issued was false the members of the court themselves would be open to criminal prosecution.

An Leas-Cheann Comhairle

The Deputy must not even by way of a side wind criticise the members of the Board.

Mr. Aiken

I submit that the Deputy is not criticising the members of the Board.

An Leas-Cheann Comhairle

In the opinion of the Chair he is.

Mr. Flinn

I do not intend to make any effort to prove this case outside the strictest restrictions that are imposed on me. The House must take the responsibility. It is on the House that the responsibility will rest if the case is not put.

An Leas-Cheann Comhairle

The Deputy is getting as much freedom as any member of the House and no more.

Mr. Flinn

If, as a result of the existing rules of the House, this question is not discussed, if, as a result of rules made by a majority of this House, it is impossible to produce evidence necessary to prove that these things were wrong, it is on the House that responsibility will rest.

An Leas-Cheann Comhairle

The Deputy cannot criticise the Standing Orders and Rules of this House in that way. There is a way of doing it if the Deputy desires it.

Mr. Flinn

From the evidence which has been produced to me individually, and from the evidence which has been produced in general to the House on individual cases. I myself am satisfied that there has been gross abuse of this Pensions Act. It is because I am satisfied that there has been gross abuse of this Pensions Act by whomsoever has grossly misused it, and because this Section 2 attempts to put out of the purview now or in future of any court in this country gross abuse of the finances of the State under that particular Act, that I am opposing.

If this Act passes for the duration of the present Dáil, however long it may be, not merely will these pensions be paid, not merely will the gross sum taken out of the country for the payment of these pensions be increased, but protection will be given to those who individually have grossly abused the procedure of this Act, from the criminal prosecutions to which I believe they are liable. Not merely will it be for the duration of this Parliament, but for the total time which, under the Constitution, as revised, the Seanad can hold up the revision, which is inevitable, of this Act, when this Ministry comes to an end. You have a period in my opinion of, roughly speaking, between three and four years assuming that the total powers of delay are used, in which the present expenditure under this heading, which in my opinion has been grossly abused, will be continued.

The country cannot afford extravagance of this kind, and above all the people cannot afford corrupt abuses of this kind. They would have to be a rich country, they would have to be a country with very much stronger traditions of honest administration of public funds, for public as distinct from party purposes, before they could put up with the discredit, the growing and cumulative discredit, that comes to them by the open continuance of financial abuses of this kind. I believe that in every case where men have served and suffered, where men have been disabled, where men's financial and other positions have been gravely injured by public service of this kind, that to the extent to which the community can afford to do so, it ought to come to their assistance, but because I believe that under the Army Pensions Bill these funds have been used for other purposes and because I believe that under this Bill machinery is set up to cover up and to continue that abuse, I ask the House to cut out of the Bill the operative section and, by so doing, destroy the Bill.

Mr. Derrig

It is obvious that on this occasion we are going to have a repetition of the silence which actuated the Government on the Second Reading of the measure. Deputy Flinn has just pointed out that a very serious attack is being made in the second section of the Bill on the whole system of financial administration in this country. It is the first occasion, I think, within the legislative history of this Dáil that an attempt has been made upon the prerogatives and the legislative power of the Comptroller and Auditor-General. Deputy Flinn, I think, is right in advising the House that a very serious precedent is being created. Members of the Cumann na nGaedheal Party cannot have it both ways. They cannot go about the country talking about financial rectitude, keeping the standard and the credit of the country high, and urging the need for constitutional action when they, themselves, when it suits particular Party necessities and particular Party crises, take upon themselves to scrap the Constitution which we had understood they were pledged to defend against everybody and everything.

There is no power in the Constitution of a modern State that is more fundamental than this power of the control of the purse. If there is any safeguard at all for democracy and the people against an unjust or an unscrupulous Executive, it is that there are going to be safeguards in the Constitution which are going to prevent that Executive from having public funds used in a manner that was not contemplated by the Legislature. It would obviously be impossible for the Dáil or any assembly to examine the financial transactions of the Government themselves, and we have set up, as part of our machinery and part of our Constitution, a particular officer who is charged with scrutinising all these transactions, with vouching them, and with certifying that they are in accordance with the law and with the intention of the assembly. If you remove that and decide that in particular cases the Comptroller and Auditor-General is not going to have that power, you are setting a precedent, and a very unfortunate one, because you are showing the country that no matter how sacred or how fundamental to the administration and to the Constitution a particular cog of the machinery is, that can be upset, destroyed, and taken apart when it suits the present Executive. We know how our opponents talk about changing the Constitution, but then they attempt to change the Constitution in a manner which affects the people more perhaps than any other possible thing could affect them. Because the Government is tied down and restricted in the expenditure of public moneys in the way that it is now, under the Constitution, the people have safeguards and controls. In this particular instance, these things are going to be all removed. If the Government have at this stage the temerity to ask the country and ask the Dáil to accept this, and to ask us to make an exception to the basis of all financial administration, I only wish they could have found a better case and made a better claim, made out better reasons and adduced better arguments than they have done. Cases have been quoted, as the previous speakers have pointed out, and the Minister for Defence has not contradicted them, where pensions are being wrongfully paid, where they have been deliberately or unwittingly paid to persons who did not deserve them. It is a matter of common knowledge that there are people receiving pensions who have not the service for which the Minister for Defence, or whoever is responsible, has given them credit.

Apart altogether from the question whether the whole matter of these pensions should not be gone into with a view to seeing whether economies could not be effected, we have the position now, as Deputy Flinn said, that we are going to be absolutely committed to this expenditure for a further number of years, during the lifetime of this Dáil and perhaps for some years afterwards, even if there be a change of Government. We are going to be committed to this expenditure, and still we are being told that we have control of expenditure. We spend I do not know how many hundred hours every year discussing finance, trying to reduce costs, and so on, and here we have an Act which is going to commit us for a number of years to the full expenditure which is contemplated and which has been granted under this Military Pensions Scheme. There is no Court of Appeal. If the Government think, as they have so weakly urged, that the Comptroller and Auditor-General, who is good enough and is placed there under the Constitution to examine every other aspect and account in our national finances, is not good enough to do this particular work and that there are reasons why he should not do it, they might have given some alternative. They might have come forward and suggested that there should be an appeal to some court, say the Supreme Court of the Dáil, but they are not alone treating the Dáil with contempt in placing this thing out of bounds for a number of years, but they are placing the Comptroller and Auditor-General himself in a dangerous position indeed. If the House is going to tell him, in spite of his constitutional and legal powers, that he is not going to have the right to do this thing, it seems to me that that is opening the road to the present or any future Executive to come along and say, "You were not allowed to examine the accounts for the Military Pensions, you were not allowed to examine the vouchers and dates of service, and so on, and we are going to see that in any other matter the Executive may choose to select you are not going to have that power either." No alternative has been suggested. No compromise has been suggested either. The Ministry take it in this case, as in all other cases, that they have a sufficiently supine opinion in the country and a sufficiently pliable and large majority in this House to carry through any kind of legislation.

I say what is sauce for the goose is sauce for the gander, and you cannot continue the state of affairs that has been going on in this House since we entered. You have tried to trample the Fianna Fáil party under foot, to make out that they were false to all the principles you ever heard of and at the same time that they were absolutely out against the Constitution. You cannot take up that attitude and pretend on the other hand that you are out for peace and unity and all the rest of it in the country. If the Government party are serious and recognise—I am sure some of them do—that there are genuine cases which ought to be examined and that no Executive ought to have power to place any payments outside the scope of this officer for so many years, I think they ought to assert themselves. I think they ought to tell the Government that it is not right to say the party on this side are solely actuated by political prejudice against the men who are drawing pensions. The basis on which these pensions are being granted is laid down in the statute. All that is necessary is that it should be shown that they had service in the Republican Army and in the National Army for a certain period. It ought to be possible, if the Government were really anxious to get at the bottom of this thing, to come to some decision which would enable the country to see that no effort is being made to hide this thing up, because if years pass and if in the future this legislation is revised or is abrogated it would be very much harder to get evidence than it is now. Even as it is at present, if you have sufficient personal knowledge to say that a particular person who is drawing a pension did not occupy the position he is credited with in the old I.R.A., it is extremely difficult to get evidence. The men of that body are broken up. A great many of the men are out of the country. Some of the pensioners themselves are out of the country. I think this is not treating the country as a real Constitutional Government should. A Government that really stood for the will of the people and really wanted financial rectitude should do the right thing in this matter towards the country. It should pay some attention, at any rate, to the claims made on this side of the House and the statement made about pensions being paid wrongly. Instead of that, the Government are going to preserve silence; they are going to try and get this piece of legislation through like so many other pieces. Then when they have it through and secured a good number of their own supporters for many years to come in comfortable pensions, without any regard as to how other members of the community may look on it, they will treat us, I suppose, as they have treated us in the past few months, with all kinds of lectures as to how we ought to behave and act towards the Constitution. If they are really sincere let them give the example. You may fool the country some of the time, but you are not going to do it all the time.

Mr. Little

I am not going to enter into the aspect which has been so well dealt with already, namely the manner in which the pensions have been paid. I shall merely deal with certain arguments of a legal nature put up by the Government. It was argued strenuously by members of the Government that this court really constituted a judicial tribunal and, therefore, its findings should not be interfered with. When we look to the authority of the Constitution, we find Article 69 lays down that "all Judges shall be independent in the exercise of their functions, and subject only to the Constitution and the law." If that is really their case, the proper method for them to have adopted would have been to have stated a case in the High Court and have carried it to the Supreme Court and have had nice lines drawn between Article 69 of the Constitution and Article 62. Under Article 62 of the Constitution "Dáil Eireann shall appoint a Comptroller and Auditor-General to act on behalf of the Irish Free State (Saorstát Eireann). 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 stated periods to be determined by law."

Undoubtedly, it is possible that there was a doubt as to which of these two clauses holds good, first whether the tribunal is a judicial tribunal, and, if so, in the conflict which undoubtedly arises—it is a line-ball case—as to which of the two clauses should be upheld. I think that was a very nice case, one certainly which a responsibly-minded Government would submit to their Judiciary if they had any respect for the law, for their Constitution, for that reverence which they want to have attached to the Constitution, which makes people feel that it is not going to be changed; that as between the Government and the citizen on questions of Constitutional law, the Constitution is there to protect everybody, and the judiciary is there to enforce the Constitution in favour of the weak against the strong.

Instead of stating that case, they come and put the case in this form to us. They bluffed many of their own followers into supporting them by stating that case. They do not go to the courts and get a decision either for or against. Their alternative would be frankly, if they thought the case was going against them, or that they would not be likely to get the judgment which they would like before the Supreme Court, in other words, that the terms of Article 62 would prevail over the terms of Article 69, would be to introduce a Bill which frankly amended the Constitution. At least, that would be the honest line. They did not do that. In mending their hand they do it by the backdoor method and pretend to one set of followers that it is really no amendment of the Constitution at all. As a matter of fact, I am not quite certain whether they will amend their hands in the way they think, because I believe it is still open to question whether you can amend the Constitution by implication. I can really imagine a decision given by the Supreme Court that the Constitution must be upheld unless it is explicitly amended. There is the mess. Of course, it is a party matter, one in which not merely party sentiment is concerned, but in which party interests are deeply concerned. We have already had evidence to show that. Therefore, we cannot expect to get a fair review of these cases, and I regret very much that those Independent members of the House, for whom personally I have had considerable regard on questions where they felt that they could exercise influence, and get fair dealing, have in this matter been absolutely hopeless, by the way they are acting as ignominious tools of the Cumann na nGaedheal Party.

Professor Tierney

I want to protest against the quaint allegation that was made by Deputy Derrig that members of this party have not spoken on this subject. I have been in the House and I have heard a good deal of the debate and I would be almost inclined to reply by saying that the cost of printing what has been already spoken on the subject would be sufficient to pay at least one decent pension for a number of years. I have heard speeches delivered at great length from both sides of the House and that the accusation of silence should be brought against this party seems to be most extraordinary. It becomes clearer what the Constitutional position of the Fianna Fáil party is. Listening to Deputy Derrig's speech, and to what he said about the prerogative of the Comptroller and Auditor-General, and about his legislative powers, one gets an idea of what the Fianna Fáil Party would have done, if they had a share in the formulating of the Constitution of this State. They would have no Parliament at all. They would have done away with judicial, legislative and executive authority, and substituted for the lot one great big Comptroller and Auditor-General whose function it would be to supervise everyone else. The exaggerated respect which the Fianna Fáil Party claim to have for the office of the Comptroller and Auditor-General really goes beyond the imagination. They want to put the Comptroller and Auditor-General in a position of absolute supremacy, higher even than the King himself in the Constitution. The Comptroller and Auditor-General does act as Deputy Little has been claiming he should do. He is given power to audit the accounts of the State and he does audit them. In respect to pensions, he gets the claims and the decisions and he has then to decide whether the pensions are paid as laid down. He has those powers and these are the only powers the Constitution give him. He is not given the legislative powers and prerogatives by the Constitution that Deputy Derrig suggests.

Mr. Flinn

Why this Bill?

Professor Tierney

This Bill is in order to make clear questions that have arisen.

Mr. Flinn

To remove doubt?

Professor Tierney

To make clear questions that have arisen. Apparently the Comptroller and Auditor-General makes a certain claim. The Attorney-General has advised this House that that claim is not tenable.

Mr. Flinn

I think it will be within the knowledge of the Deputy that we have had a series of Acts, for the introduction of which a reason has been given; that is, specifically to remove doubts. That being a recognised procedure we are entitled to ask, in the absence of such procedure, if this Bill is to remove a doubt. There are a considerable number of precedents for introducing Bills to remove doubts. If this Bill does not contain that statement then we are entitled to assume that it is not to remove a doubt but to do what it sets out to do.

Professor Tierney

I cannot altogether follow the Deputy's argument. Every Bill is a Bill to do what it sets out to do. This Bill sets out to do certain things.

Mr. Flinn

You said it was to remove doubt.

Professor Tierney

This is a Bill to decide definitely a matter which was apparently in dispute, as has already been explained half-a-dozen times. This Bill decides definitely that it shall not be the duty of the Comptroller and Auditor-General to scrutinise cases under the Act. It is a Bill to do that, and in doing that it does not take away from any of the powers that the Comptroller and Auditor-General has under the Constitution. I fail to understand what position the Fianna Fail Party wish to create. If they wish to set up the Comptroller and Auditor-General as an authority to go into all the details in connection with all the pensions from the beginning, then what was the necessity to set up this tribunal at all? Of course, the Fianna Fail Party were obsessed with another chimera at the time the tribunal was set up, the formula difficulty. This whole matter was to be left to the Comptroller and Auditor-General, and I suppose he would be provided with an elaborate staff and machinery, much more elaborate than is provided for in this Bill. This notion of turning the Comptroller and Auditor-General into a sort of uncrowned king and combined civil servant of the State is about the strangest I have ever heard in this House.

Mr. Little

Does the Deputy consider that this Act amends the Constitution or not?

Professor Tierney

I do not.

Mr. Flinn

Then the Deputy must consider that the Comptroller and Auditor-General has those powers.

Professor Tierney

No.

Mr. Flinn

He suggests that we suggest that the Comptroller and Auditor-General should have certain powers that he has not. If he has those powers, it is suggested that for a couple of years there has been a doubt. Why has the benefit of the doubt been given by the Executive Council against the watch-dog of the Dáil?

An Leas-Cheann Comhairle

Will the Deputy explain who is the watch-dog of the Dáil?

Mr. Flinn

The watch-dog of the Dáil is the Comptroller and Auditor-General. The Executive was interested. Why have they not given him the benefit of the doubt?

Professor Tierney

Does the Deputy suggest that the Comptroller and Auditor-General is interested?

Mr. Flinn

No.

Professor Tierney

What does the Deputy mean by saying the benefit of the doubt is given against the watch-dog of the Dáil?

Mr. Flinn

He is officially and constitutionally interested in the carrying out of the function given to him by the Dáil as the watch-dog of the Dáil. What I want to know is: Why, if it is admitted that there is a doubt as to whether or not the watch-dog has a right to go into those things, the Executive Council have for two years obstructed him in the exercise of that right and have refused to go to the court to find out who was right? We are told there was doubt. We are not told in the Bill. This is to give new powers to a Commission. This is to restrict the existing power under the Constitution of the Comptroller and Auditor-General. If there was a doubt for two years, why was he obstructed? Why did not the Government try it out? Why did they not find out who was right— whether the watch-dog had a right or had not? If interested parties interfere in a case of that kind to obstruct the function of an officer whom we have appointed to review things in our behalf, prima facie there is a case——

Professor Tierney

Will the Deputy explain who the interested parties are?

Mr. Flinn

Most certainly. The Government opposite—the parties who between June and September, 1927, rigged the ring. They were interested.

An Leas-Cheann Comhairle

I hope the Deputy is quite clear that he is speaking on Section 2 of the Bill in Committee.

Mr. Flinn

Quite so. I understand that.

An Leas-Cheann Comhairle

Let us be clear on that.

Mr. Flinn

I hope the House is clear.

An Leas-Cheann Comhairle

I hope the Deputy is clear.

Mr. Flinn

The Deputy is clear. Certainly he has to do what he is told whether he is clear or not. Is this a Bill to remove doubt? If it is, then there is a prima facie case that for two years, on a doubtful case, the Executive have obstructed the Comptroller and Auditor-General in doing his work.

Professor Tierney

It has been explained over and over again that the doubt existed only in the mind of the Comptroller and Auditor-General himself, and the Executive Council were fortified in their position by the advice of the Attorney-General.

Mr. Flinn

This is a Bill then to remove the doubt in the mind of the Comptroller and Auditor-General?

Professor Tierney

This Bill is introduced to make certain what was always the legal position, except in the mind of the Comptroller and Auditor-General.

An Leas-Cheann Comhairle

Might I make it clear that I am concerned only with Section 2 and that this is not a Second Reading debate?

Mr. Flinn

Section 2 contains the whole principle of the Bill.

An Leas-Cheann Comhairle

I am in absolute agreement with the Deputy for once.

Mr. Little

I think Deputy Tierney has stated the case far better than anyone else. Here you have two sections of the State taking a different view, interpreting in a different way a very serious constitutional issue. Surely if the Supreme Court has any function whatever in deciding constitutional issues, this is an ideal case to send to the Supreme Court instead of passing Section 2.

Mr. Flinn

Is this a Bill to define the Constitution?

An Leas-Cheann Comhairle

We are on a section in the Bill.

Mr. Flinn

That is the point. The point is raised. We suggest that we are to take it that there are in existence certain powers of the Comptroller and Auditor-General, and that this Act, in being introduced to take away those powers, makes a prima facie case to that extent.

An Leas-Cheann Comhairle

The Deputy is now making a Second Reading speech. Again, I want to remind the Deputy that we are discussing Section 2 in Committee.

Mr. Flinn

Yes, Section 2, which contains the whole body and soul of the Bill in every detail.

An Leas-Cheann Comhairle

I agree.

Mr. Flinn

Here is the point: Apparently now the suggestion is that this is a definition of the Constitution as advised by the Attorney-General. That is the statement made by the Deputy. It may be entirely wrong.

An Leas-Cheann Comhairle

It is not in the section.

Mr. MacEntee

It may be implied in the section.

An Leas-Cheann Comhairle

It is not in the section or even implied in the section.

Mr. Flinn

Deputy Tierney says that certain powers were not in the possession of the Comptroller and Auditor-General. This Bill agrees with Deputy Tierney. Deputy Tierney was defining the Constitution. Therefore, this Bill must be defining the Constitution, and we cannot introduce a constitutional definition Bill in this form.

Minister for Defence (Mr. Fitzgerald)

The Deputies who have spoken so far confined themselves, as far as I can make out, to two points (1) the question of the Comptroller and Auditor-General, and (2) abuses under this Act. The point as regards the Comptroller and Auditor-General was made abundantly clear to anybody who wanted to see what was obvious in the previous debate. I pointed out then that the original Act laid it down that on certain terms certain moneys were to be paid. Moneys were to be paid to pensioners according to rank and term of service, and the Act laid it down that the time of service for that Act was the time of service declared in the certificate of the Board of Assessors. All that comes into my hands is available to the Comptroller and Auditor-General; there has been no doubt about that at any time. All that comes into the Minister for Finance's hands is available to the Comptroller and Auditor-General. We, who are called interested parties, are ready to hand over to the Comptroller and Auditor-General all that we have a right to have ourselves. The Comptroller and Auditor-General, having no legal knowledge, misunderstood and thought he should have access to certain notes made, not under the Act, but for their own guidance by the members of the Board. The Attorney-General advised us that not only was the Comptroller and Auditor-General not entitled, but neither was the Minister for Finance.

Mr. MacEntee

Might I ask who stated that the Comptroller and Auditor-General misunderstood his powers? Does the Comptroller and Auditor-General agree that he misunderstood his powers? Does he accept the position that the Minister is now putting him in before the House?

Mr. Fitzgerald

I have no idea what he accepts.

Mr. Flinn

This is merely to be taken as the Minister's statement of opinion.

Mr. Fitzgerald

This question arose owing to his asking for certain notes of evidence kept for their own guidance by members of the Board. I assume he would not have asked for them if he had not been under the misapprehension that he should get them. The Attorney-General gave his advice, and that advice was made available to the members of the Public Accounts Committee. The advice was:

The only records of evidence to which either the Act or the Regulations refer are:—(a) the record of applications (Regulation 6); (b) the reports sent to the Minister for Defence. Any other records of evidence tendered to the Board would really be in the nature of notes made by the Board for its own convenience, and need not be handed over by the Board. All that the Minister is entitled to under the Act is the report of the Board made upon consideration of the evidence. Neither the Minister for Defence nor the Minister for Finance is entitled to demand the records of evidence in the possession of the Board. He has by his regulation settled the form of the Report, and no reference is made therein to the evidence on which the Report is based. It is submitted that the Minister is not prejudiced under Section 3 (6), as he can always request the Board to re-open their findings. Of course, if the evidence has already been before them, they can decline to comply with the request. The Board under the Act was constituted by the Minister with the approval of the Executive Council and exercises judicial or quasi-judicial functions. The Act does not contemplate that either the Minister for Defence or the Minister for Finance should act as a court of appeal from the Board or a revising authority over the findings of the Board or the effect of the evidence heard by it. If that were intended, the Act should have been framed differently.

Mr. O'Kelly

Will the Minister tell us who appointed the Attorney-General?

Mr. Fitzgerald

The Government, in whom that power resides.

Mr. Little

The Attorney-General is not in a judicial position?

Mr. Fitzgerald

I quite agree.

Mr. Little

Why did not the Government, on receiving that advice, proceed to the Supreme Court to have this question settled?

Mr. Fitzgerald

The case was perfectly obvious; there was talk of keeping things back from the Auditor-General which he ought to get, and that he should be able to audit the accounts. An Act was passed showing that on certain certificates certain moneys should be paid. We show to the Auditor-General the certificates on which they were paid, and he audits the payments; that is his end. If the Comptroller and Auditor-General thought that we were withholding from him powers; if we were perfectly satisfied in our own minds, and if common sense and previous experience and intelligence indicated that we were taking the right line in so acting, if the Auditor-General thinks that line is wrong, or if he has a grievance about the matter, then obviously, as he is the aggrieved party, he is the person to take action in the court. The Deputy opposite knows that if he owed me £10 he is not the person to go into court to decide on that point. If I feel he owes me £10, my business is to take the proper course to get that money from him.

Mr. Little

May I ask the Minister this question: How can the Comptroller and Auditor-General, of his own volition, without the assistance of State funds, proceed in this matter? There surely should be agreement between the two parties to have a final decision by the Court. It is not for the Comptroller and Auditor-General out of his own pocket to take the case to the court.

Mr. Flinn

Has the Auditor-General any fund to enable him to take an action of this kind?

Mr. Fitzgerald

Deputies opposite know perfectly well that the Government is quite satisfied that the line we took is the only right line to take.

Mr. Flinn

Of course, we know that.

Mr. Fitzgerald

They know also perfectly well—it is as clear to them as it is to us—that the proposal to make public the evidence, as I explained in the previous occasion, tendered before the Committee would be definitely against the interests of the State and definitely against the interest of the individuals who gave that evidence, whether on their own behalf or on behalf of other applicants. The third report of the Public Accounts Committee of 1926-27, published on 22nd November, 1928, states—and the Committee of Public Accounts are the controlling body over the Comptroller and Auditor-General—"The Committee is satisfied with the determination to seek the decision of the Oireachtas in this matter." The Committee of Public Accounts asked that this should be done, and we are proceeding to do it. These things came out on a number of occasions, and on this question there never was any doubt, in my mind at any rate. I handed over to the Comptroller and Auditor-General all that was available and all that I had a right to demand from anybody else. But the Comptroller and Auditor-General wanted to get something from my Department which my Department does not posses and which, we are advised, we have no legal right to demand; then we bring in this Bill to clear the matter up.

Mr. MacEntee

To clear the matter up?

Mr. Fitzgerald

Yes, to clear up what the Public Accounts Committee wanted. They say:—

"The Comptroller and Auditor-General as in two former years reports that his audit of certain military service pensions has been confined to an examination of the amount of pension awarded, based on reports of the Board of Assessors. The Committee of Public Accounts in its report dated 24th February, 1928, recommended that this position should be regularised and the present Committee concurs with this view. Since the Committee began its work, the Minister for Finance has communicated a minute replying inter alia to the paragraph in question. He states that, in deference to the opinion of the Committee, proposals for legislation will be laid before the Oireachtas, and he states that the object of these proposals will be to establish that the data on which the Board of Assessors based its findings, shall not be, and shall be deemed never to have been subject to audit by the Comptroller and Auditor-General. The Committee is satisfied with this determination to seek a decision of the Oireachtas in this matter.”

We are now meeting the wishes of the Public Accounts Committee.

Mr. Little

Would the Minister say, is this, in any way, an amendment of the Constitution?

Mr. Fitzgerald

Certainly not.

Mr. Lemass

Is there any position to be regularised? Does not the Government's legal adviser state that the position is quite regular? What is the necessity for this Bill?

Mr. Fitzgerald

The necessity is —the Fianna Fail Party seems incapable of understanding it—ordinary courtesy. The Public Accounts Committee wanted this done and we are proceeding to do it. One thing that I object to in this debate is that time and again assertions are made that proof has been adduced of irregularities in giving these pensions. Now, no one in this Dáil or outside it is more anxious to rectify cases of pensions given where they were not due than I am, and I have taken every possible means to get after such cases. Some time last year, a Deputy of the Fianna Fáil Party referred to such a case. He told me he was in the position to prove that the recipient had not fulfilled the requirements. I asked him to produce evidence, and he came along with documents from some people, and from these very documents I got sufficient evidence to show that the particular man was entitled to a pension. The Deputy himself more or less agreed with me that the man was entitled to get his pension, although statements were made publicly that that man should not have got a pension. Last June Deputy Ward asked certain questions about certain pensions, and he made certain statements about these cases. I had these matters looked up. I do not pretend to carry everything in my head. Yet without previous warning on the Second Reading debate, Deputy Ward got up and referred to Questions 21, 22, and so on, which he said he had asked. I made a mistake in regard to the first one. He gave information in regard to it that more or less coincided with another case, and I said I had already dealt with that. The Deputy went on to other cases. He gave six cases in all. As I was here in the House and had not the reference required at the moment to show exactly what were the details of the case, I asked the Deputy would he tell me if he gave information on a previous occasion such as he had given now, and he said I was merely trying to put him off his track.

In most of these pension cases, I admit I have no information whatever. A man applies to the Board for his pension, that application comes to the Board, the Board may report to me that they have gone into his case and have ordered a pension for a period, or the Board may have refused a pension. The man is notified. He then re-applies with additional evidence and it comes on to them, so it is only by an accident that I have any information whatever about the matter. But coming to the case of Deputy Ward, what was the case he made here? He alleged that men were getting pensions that not only were they not due to get, but that they were getting them solely in the personal interests of a member of this Government. Take Question No. 21. I do not pretend to know a great deal about this case. The Deputy got up and said he could prove these men should not have got the pensions they were getting. Deputies Flinn, Aiken and Derrig got up and made a case not directly but by way of innuendo. It was a crude case, and the word "evidence" was used with regard to it. Certain scurrilous organs have printed as proof statements that Deputy Ward chose to make. Deputy Ward quoted the case of No. 21. He said:

This man was courtmartialled and dismissed from the Irish Republican Army early in 1922. He never served in the Free State Army in his life, not one hour— neither did his brother, for that matter, and he also has a pension. I would like to know from the Minister what steps he has taken since the 13th June to ascertain the accuracy or otherwise of the allegations which I made regarding this man's position and his claim for a pension. He certainly has not asked me about it, nor has he asked my assistance in establishing whether this man was entitled to a pension. He knows that I would have first-hand knowledge by reason of the position which I held at that time.

I do not consider that if anybody likes to get up and make accusations that it is my business to go after him. It is the duty of any ordinary citizen who has evidence to prove that a man is drawing a pension that he should not be drawing to come forward and give that evidence. There is no need for Fianna Fáil Deputies to get up here and try to prejudge a case against an unfortunate man who may be getting a pension which he is justly entitled to.

Mr. Aiken

Will the Minister give the people of the country the facilities necessary to do that?

[An Ceann Comhairle resumed the Chair.]

Mr. Fitzgerald

I have given them, and the Deputy knows that.

Mr. Aiken

The Minister has given a list without any addresses.

Mr. Fitzgerald

I have given a list of the counties. Deputies know perfectly well, with regard to the great bulk of these cases, that you can get people in any district who can tell "who is who." Failing that they can write to me on the matter.

Mr. Lemass

Why does the Minister refuse to give the addresses?

Mr. Fitzgerald

My Department would be put to a great deal of trouble to produce these lists, and apparently for no other purpose than to attempt to injure men in their own districts by publishing them in the various newspapers.

Mr. Lemass

What injury would be inflicted on the men?

Mr. Fitzgerald

Deputies know perfectly well that they have gone around engaging in mean, dishonest propaganda through the country about pensions and all the rest of it, that everyone is getting something, while they themselves are drawing their screw that they do not refer to so much.

Mr. Aiken

Why does the Minister want to keep them secret?

Mr. Fitzgerald

A thing may be quite all right in itself, but when pilloried in the newspapers it is a different matter. Deputies know perfectly well that to wear a bowler hat is an innocent thing, but to call after a man in the street that he is wearing a bowler hat is an attempt to pillory the unfortunate man. The Deputy got up in the middle of the debate, rattled off things, and wanted to know what was being done. When he spoke of Case 21, I thought he was speaking about Case 22. I said it was not denied that he was dismissed from the Volunteers. I was wrong in stating that. I confused Case 21 with Case 22. The case was sprung on me without notice. In this case the O/C of the division and the colonel, who was the man's battalion commandant, both informed me he was never courtmartialled. He was reduced. This man, I believe, was a particularly good fighter when fighting was on. When it came to peace time, when Deputy Ward, for instance, was showing very good form, this man had not much use for the mere training business. He was not dismissed from the Volunteers according to the information that I have. On the one side we have the evidence of the O/C of the division and of this man's battalion commandant that he was never dismissed from the Volunteers. On the other hand, we have the statement of Deputy Ward, who had a much less distinguished military career and less knowledge in the matter, getting up and stating that this man was dismissed from the Volunteers. On question 22, the Deputy stated that the man had been dismissed from the Volunteers. He was right in that, but it is interesting to notice that he did not mention that he was reinstated in the Volunteers. The man is not being paid a pension for the period during which he was outside the Volunteers.

Dr. Ward

Is the Minister aware of the offence?

Mr. Fitzgerald

I have an idea of it.

Mr. Aiken

Was he reinstated after the attack on the Four Courts?

Mr. Fitzgerald

No, I think it was before the Four Courts. He was reinstated while Deputy Ward was still around, but I am not sure of that. The Deputy referred to one of six cases in Monaghan town. He said he would undertake to prove that this man was not entitled to a pension. What is the proof? This is the proof that Deputies opposite swallow and are prepared to damn a man's character on—"is in receipt of a pension, period of service based on so-and-so." That is all the proof the Deputy gave that the man was drawing a pension illegally. He merely states that this man is drawing a pension, and asserts that his statement was sufficient proof that the man is drawing a pension illegally. What do I know about this man? I happen to know the man through a divisional commandant who was divisional O/C. in this area. He was particularly interested in this man. When there was no award at first the O/C. of the area took the case up again. He gave me a most emphatic declaration of the value of the services of this man referred to in Question 23. I am assured by others who were not exactly on the spot but were associated with that area, very well known fighting men in the district, that during the Black and Tan times this man gave splendid service. I am told, moreover, that if anyone goes to the town of Monaghan and asks there who gave the best pre-Truce service, whether it was this man in Question 23 or Deputy Ward, the answer unanimously given would be that it was this man, No. 23.

Mr. Aiken

If this man had such a splendid record and was recommended by his divisional O/C., by the Battalion Commandant, and all the rest, why did he not get a pension until 1927?

Mr. Fitzgerald

Deputy Ward, for instance, referred to a man of splendid service who did not get a pension. He said he did not get a pension simply because he was not a supporter of the Cumann na nGaedheal Party. This man was notified on the 5/5/'26 of the Board's decision disallowing his claim. He appealed against the decision, but he did not produce any evidence purporting to be additional to that which he had given to the Board originally. Although he was asked to give such additional evidence in letters from the Department dated the 21st June, 1926, the 13th July, 1926, and the 22nd February, 1927, he failed to produce any evidence that purported to be additional. That is the reason that the man he says who gave such splendid service did not get a pension. Often through stupidity and one thing and another men did not put their cases properly. This man was given every opportunity to produce additional evidence, and he did not produce it. It happened in many cases that the people with the best services, pre-Truce, did not give sufficient evidence. In many cases people who gave the best services in their districts were not awarded pensions on their original applications. They appealed and were told additional evidence was required. Sometimes they only sent in the same evidence again. We wrote back saying this evidence is not additional. Finally, when the bait of the pension was before them, they did get sufficient additional evidence to go before the Board.

Mr. Lemass

How does the Minister know what evidence went before the Board?

Mr. Fitzgerald

Deputies have spoken in this debate as if this Board still existed. It has ceased to exist for the last two years.

Mr. Aiken

Is the Minister stating that these pensions were not given because some evidence that was afterwards given had not been given a few years previously?

Mr. Fitzgerald

Usually that is so.

Mr. Aiken

But in this particular case was additional evidence forthcoming about September?

Mr. Fitzgerald

Deputy Ward is pretty wrong about things occasionally. One case he told us about was that of a man who was violently opposed to Cumann na nGaedheal in March or April, 1927, I do not pretend to have information about all the cases he mentioned. Deputy Ward stated in regard to case No. 26: "I happen to know this man was a public representative. I happen to know that he was particularly hostile to the Minister for Finance in April or May, 1927. He had applied time and again to the Board of Assessors and the Board of Assessors turned him down because he was not entitled." As far as I can make out the Board of Assessors granted a pension on his first application on 1st January, 1927. Once the Board had granted it the delay in giving the pension was only contingent upon the time necessary to make certain inquiries as to whether the man was ineligible for it by reason of having been sentenced to a term of imprisonment. The man had the pension granted to him on the 7th January. If he was violently antagonistic to Cumann na nGaedheal Party in the May or April after that January, there was no action of the Government or the Pensions Board that was calculated to change his point of view. If he were violently antagonistic in April or May he was violently antagonistic with full knowledge that the Board had granted him his pension.

Mr. Aiken

But he had not received his first payment.

Mr. Fitzgerald

He knew perfectly well.

An Ceann Comhairle

Would the Minister tell us what these numbers mean.

Mr. Fitzgerald

On the occasion of the second debate Deputy Ward spoke about certain cases. He said that in the month of June he asked about certain pensioners, dealing with certain numbers. He expected me to know offhand what cases he was talking about. Certain newspapers were denouncing me for wriggling because I did not know offhand about these cases.

Dr. Ward

As regards case No. 26, the Minister said that the pension was awarded in January, 1927. In answer to my question on 30th June, 1928, the Minister said that the pension was awarded on 5th May, 1927, and the first payment made on 1st June, 1927.

Mr. Fitzgerald

The certificate was awarded on 7th January.

Dr. Ward

That is your way out of it.

Mr. Fitzgerald

That was the decision of the Board. After that we had no power to alter it. The man was certificated as due for a pension in January. The suggestion was that this man was violently hostile in April or May and that the Government took action to buy his support by granting him a pension. The Deputy knows that unless the man was sentenced to a term of six months' imprisonment there was no power to withhold the pension from him after 7th January. The suggestion that he was bought over is a thoroughly dishonest one.

Dr. Ward

When did you tell the man that his pension was granted?

An Ceann Comhairle

Could we get away from these inquests on cases and come to Section 2?

Mr. Fitzgerald

On the occasion of the Second Reading debate references were made to this. Three members of the Fianna Fáil Party got up and made bald and incorrect statements. Deputy Ward referred to these cases as proved cases because he stated the men were drawing pensions to which they were not entitled. Deputies opposite not only implied but stated that this was done not merely by the dishonest act of the applicant but of the Board. I have been most anxious to get at any cases of pensions that are being drawn and that should not be drawn. Any case that has come up here I have looked into with the amount of information at my disposal. Deputies opposite have time and again said that the majority of people drawing pensions were not entitled to them. One would think from the suggestions made that if one looked into it it would be found there are cases of buying people over, or that people were receiving pensions on the strength of statements that were patently untrue. On the contrary, in every case I had any information about and was able to look into, the information was such as assured me that the man drawing a pension was well entitled to it. Deputies opposite, and especially Deputy Ward, appear to be particularly anxious to delude the public into thinking that their desire was to save the public purse. In this case the Divisional O/C and the Battalion Commandant was better able to speak than Deputy Ward.

There is one case in which I should be very glad to have the Deputy's assistance; it is the case of a man who is being paid for two full-time jobs for the same period, a man drawing £25 per month as full-time M.O. in Monaghan. During the same period he was drawing for one part of the time £5 per week, and for another part of the time £8 per week as liaison officer. That is a case which Deputy Ward would be in a much better position to give me information about than any person I have in the Army. The man I refer to is F.C. Ward. I am most anxious to get after people who are drawing——

Mr. S.T. O'Kelly

Get after your own brother.

Mr. Fitzgerald

My brother did not receive any money he was not entitled to receive.

Mr. O'Kelly

What about the Army Funds and robbing several thousands of pounds?

Mr. Fitzgerald

Deputies opposite know perfectly well that the mere statement of a man drawing a pension that he is not entitled to receive

Mr. O'Kelly

I am not talking of pensions.

Mr. Fitzgerald

I am talking about the Bill.

Mr. O'Kelly

I am talking about your brother.

Mr. Fitzgerald

The Deputy knows as well as I do that his statement is untrue.

Mr. O'Kelly

It is not untrue.

Mr. Fitzgerald

It is untrue.

An Ceann Comhairle

The Deputy cannot go on with this.

Mr. O'Kelly

The report of the Committee on Public Accounts will tell.

An Ceann Comhairle

Are we going to discuss the Bill or going to get into an unseemly exchange of personal abuse across the House?

Dr. Ward

Why did you allow the Minister to abuse me?

An Ceann Comhairle

The Minister introduced a particular case which I did not understand had any reference to Deputy Ward.

A Deputy

He mentioned his name.

An Ceann Comhairle

He mentioned his name at the very end, and the Minister was quite out of order on the matter. It had nothing to do with the Military Service Pensions Bill.

Mr. Fitzgerald

I apologise for doing that, but I felt strongly in regard to certain cases. As far as the information that was in my hands was concerned, it satisfied me that there was a greater proof that the men were due to get a pension than the mere statements of Deputy Ward. These statements were not merely made here but they were published in newspapers outside. It is most unfair to men to have statements made about them and to have it asserted, merely because a Deputy states it, that they are getting pensions dishonestly, and to have that subsequently broadcast. This thing was repeated during the debate on Section 2, and, because of my position, I necessarily felt called upon to give the information which I had at my disposal. At the same time I am quite prepared to hear from anybody who has any information to give me of cases in which it is thought pensions should not be allowed.

Mr. O'Kelly

You have heard something from me, and I wish you would take it up.

Mr. Fitzgerald

I am ready to hear particulars in any cases where it is thought pensions should not be granted.

Mr. Flinn

Give us the addresses.

Mr. Fitzgerald

I am prepared to take up any case where it is considered a man is drawing a pension illegally.

Mr. Aiken

Give the pensioners' addresses then.

An Ceann Comhairle

I think the Minister must either conclude now or be allowed to conclude without further interruption. Deputies had an opportunity of making speeches. Apparently they are not satisfied with the speeches they did make, but they must not interrupt now.

Mr. Fitzgerald

I only wanted to clear up all those points.

Mr. Hogan (Clare)

I want to bring the Minister back to realities. The Minister states that any documents in his possession could be placed before the Comptroller and Auditor-General; everything he had was available for submission.

Mr. Fitzgerald

Yes.

Mr. Hogan

In a case where a pension claim was rejected and where fresh evidence was being brought forward, is it or is it not a fact that the Board of Assessors had to ask the Minister to release a particular file before they could examine the old and the new evidence?

Mr. Fitzgerald

No. When an applicant has been turned down and makes a protest he is told that before the case can be re-opened he must produce additional evidence. Although he may send that information through me, it is really for the Board. In that case I am merely the channel through which the information passes to the Board.

Mr. Hogan

The Minister has answered part of the question, but the point that I want to put up is this: the applicant does in his own opinion adduce new evidence—I am not concerned with what the Minister thinks. Is it not a fact that the Board of Assessors, in order to examine that, had to ask the Minister to release a particular file in respect of the original application for a pension? Does not that prove that the file is in the Minister's possession and it should be made available for the Comptroller and Auditor-General?

Mr. Fitzgerald

I do not have any files. We only get the applications and the certificates when they come back from the Board.

Mr. Flinn

Do I understand that the Minister is concluding? We were not given to understand that.

An Ceann Comhairle

I was given to understand that.

Mr. MacEntee

The Minister was not called upon to conclude.

Mr. Flinn

He was not, and we were under the impression that he had not concluded. We had not any information that the Minister was concluding. I want to put a difficulty which is a very real difficulty to me. We will agree that this Bill is to prevent the Comptroller and Auditor-General from getting access to documents and particular files. The functions of the Comptroller and Auditor-General are not defined by the Dáil, but by the Constitution. If this Bill does, in fact, confirm the existing powers of the Comptroller and Auditor-General——

An Ceann Comhairle

This section —and we are on the section now— does not mention the Comptroller and Auditor-General.

Mr. Flinn

It is the essence of the thing. We fully agree that the Comptroller and Auditor-General is concerned in the matter.

An Ceann Comhairle

This section does not concern the Comptroller and Auditor-General at all.

Mr. Flinn

The point is that this does define the matter. It is to make something perfectly clear.

An Ceann Comhairle

It is not. This is Section 2 of the Bill and it does not concern the Comptroller and Auditor-General at all. There is nothing in it concerning him.

Mr. MacEntee

But he is one of the first affected.

Mr. Flinn

If this defines the existing powers——

An Ceann Comhairle

This section does not define any existing powers of the Comptroller and Auditor-General.

Mr. Flinn

The unfortunate part of it is that the whole question has been discussed steadily for probably an hour on this particular point. The question is whether or not we can bring it to an issue.

An Ceann Comhairle

We cannot, and that is quite clear.

Mr. MacEntee

Opening his speech, the Minister for Defence mentioned that the purpose of this Bill was to remove certain doubts arising out of his assumption as a Minister of the Executive Council that the Comptroller and Auditor-General had formed a wrong idea of his functions.

An Ceann Comhairle

We are in Committee and we are dealing with Section 2 of the Bill. That is a different thing altogether.

Mr. Flinn

On a point of order, it was previously put to the Leas-Cheann Comhairle that in so far as this section was the operative section and held the whole body and soul of the Bill, we could deal with the question of principle upon it, and in the fullest possible way. The Leas-Cheann Comhairle went out of his way to say that for the first time in his life he agreed with me fully. That is the point, that if for once the Leas-Cheann Comhairle has got to that position of infallibility——

An Ceann Comhairle

The Deputy is wandering from the point of order.

Mr. Flinn

The point of order is that this section contains the whole Bill.

An Ceann Comhairle

This is the operative section of the Bill.

Mr. Flinn

Yes.

Mr. MacEntee

In that event I wish to address myself as to whether it is right that the findings of the Board of Assessors should be made binding and conclusive on all persons and tribunals whatsoever. I would like in that case that the House should reject the Bill.

An Ceann Comhairle

The Deputy is talking in Second Reading terms; he is using the actual terminology of the Second Reading Stage.

Mr. MacEntee

At any rate. I ask the Dáil to reject this section unless the Minister consents to amend it.

An Ceann Comhairle

The consent of the Minister might be useless, because he might be out of order.

Mr. MacEntee

Or perhaps he would withdraw the section. Would it be possible for the Minister, even now, if he sees the wisdom of it, to withdraw the section? It was rather unfortunate that in advocating the section and urging the House to accept it, the Minister did confine the earlier part of his speech to a dispute which had arisen between certain functionaries of the State, one an officer responsible to this House and the other an officer primarily responsible to the Government. The officer responsible to this House and to the people of the country took one view of his functions, and the officer responsible to the Government took another view. One man was essentially a non-party man and the other man was essentially a party man.

An Ceann Comhairle

Who was the party man—a civil servant?

Mr. MacEntee

In my view the Attorney-General must necessarily be a party man, since on occasions he has formed part of the Executive Council in this House.

An Ceann Comhairle

He has not.

Mr. MacEntee

He has sat in this House, and he was nominated as a gentleman who was there to uphold the policy of the Government. Surely if the Government were acting in the interests of the country and not merely in the interests of a party, they would have done what was suggested from these benches they should have done. They would have referred the case to the Supreme Court and have it decided there. The Minister himself was conscious of the fact that that was one way in which the dispute might have been settled, because in the course of the debate he said: "Why did not the Comptroller and Auditor-General take this case to the courts?" I ask the Minister now: is he prepared to give the Comptroller and Auditor-General facilities to take the case to the Supreme Court and in the meantime suspend this Bill?

Mr. Fitzgerald

Certainly not.

Mr. MacEntee

Well, I am informed that the Comptroller and Auditor-General must bear the costs of the action. Will he indemnify the Comptroller and Auditor-General against the costs?

Mr. Fitzgerald

I cannot afford it.

Mr. MacEntee

Whilst the Minister thinks it is right that this dispute should be tried in the Supreme Court, still, at the same time, he will not give the Comptroller and Auditor-General facilities for bringing the case there.

Mr. Fitzgerald

The Deputy has suggested that I said that the Comptroller and Auditor-General should have brought this case to the Supreme Court. What happened was the Deputies opposite said we should have taken it there. I said that, on the contrary, it was the Comptroller and Auditor-General who was the party concerned and who should have taken it there. We were not the aggrieved party, and it is always the aggrieved party who initiates legal proceedings.

Mr. Flinn

Had they any funds?

An Ceann Comhairle

Surely it is absurd to discuss the question of the Comptroller and Auditor-General taking this case to the courts.

Mr. MacEntee

It was suggested, since there were doubts in the matter, that that was the only way in which these doubts could be resolved.

Mr. Fitzgerald

I told the Deputy we had no doubts.

Mr. MacEntee

The Minister has come to the House and said that some considerable time ago the Government were advised that the attitude of the Board of Assessors in withholding certain files from the Comptroller and Auditor-General was correct. If the advice given was correct—that is, that the Board of Assessors were right—what is the reason for this Bill?

An Ceann Comhairle

This section —not this Bill.

Mr. MacEntee

Very well, what is the reason for this section of the Bill. If they were rightly advised that their attitude was correct, why are they now bringing in this Bill? In order to indemnify themselves, we suggest, against the illegality of which they have been guilty during the past three years. The Comptroller and Auditor-General is an officer of this House, directly responsible to this House and not responsible to the Government. He is responsible through this House to the people of this State for discharging certain functions and examining certain documents. There is a similar officer who acts in a similar capacity in regard to the British House of Commons. Long experience has shown that for the proper discharge of his duty it is essential that he should have recourse to all documents, whether secret or confidential, which he, in his unfettered judgment, thinks right and necessary.

When the office of the Comptroller and Auditor-General was instituted in this State under the Act of 1923, it was laid down that he should exercise here and enjoy here the same rights and privileges as were already enjoyed by the Comptroller and Auditor-General in regard to the British financial administration. That is the point at issue. This officer was appointed by this House and given these very full powers. Between him and an officer of the Government a dispute has arisen and in order that the Comptroller and Auditor-General may be deprived of the rights vested in him by the Constitution and by the Comptroller and Auditor-General Act, Section 2 of this Bill has been introduced. The point I want to make—and I want to make it not to this House because I know that is useless but to the people of this country—is that if this section is carried it will be carried by the votes of certain Deputies in this House who are personally interested in withholding from the Comptroller and Auditor-General papers and documents which he wants to see in order to discharge his duties properly.

An Ceann Comhairle

Deputies sitting in this House have a perfect right to vote. The Deputy has no right to say that they have a personal interest in withholding documents and papers from anybody. That is purely a personal implication by Deputy MacEntee and it is absolutely wrong. To say that Deputies have an interest in withholding documents from any particular officer is to make an improper personal imputation.

Mr. MacEntee

I feel a difficulty in withdrawing. I do not wish to do anything contrary to the rules of order.

An Ceann Comhairle

There is more than the rules of order involved in this. Rules of order are based upon the rules which people observe in their ordinary relations. The Deputy has no right to state that there are in this House Deputies who have a personal interest in keeping documents from the Comptroller and Auditor-General or from anybody else. The implication is clear. It is for the Deputy to withdraw if he is so minded, but I will not allow him to repeat the statement.

Mr. MacEntee

Well, I will withdraw the imputation that they have a personal interest in withholding those documents.

An Ceann Comhairle

I am very glad.

Mr. MacEntee

I should, however, say that if I were in their position I should certainly have great hesitation in voting in a matter of this sort on account of the misunderstandings to which it might give rise. Having said so much, I am inclined to look at this from a non-party point of view. I feel that about it at any rate. We have not reached finality in our political development here. We do not know what the exact future of this country is going to be. But there is one thing that we do know—that the things that are done now will be held up later here as financial standards to be adhered to. If we are lax in our financial administration now, if we show that we are not going to be meticulously careful with regard to the expenditure of public money, I have no doubt that the future of this country is going to be an unhappy one. The Minister and the Executive Council know very well what the general feeling of the people of this country is in regard to this measure and in regard to the working of the Pensions Act. They cannot disguise from themselves what is the general feeling in the country in regard to this measure and these pensions as well. They create a certain impression abroad as to the financial rectitude of the Government's administration here.

An Ceann Comhairle

All that is in this section is a declaration that a particular tribunal shall declare what military service is and that that declaration shall not be reviewable.

Mr. MacEntee

Exactly. The point we have to meet here is that the reason why the Government desire that these declarations are not to be reviewable is that they are declarations which cannot stand review and cannot stand examination and that therefore the Government have used a certain statute of the State in order to procure for themselves political support in the country, that under the aegis of the Pensions Act they are creating a political slush fund. That is what is being said here and what is being said throughout the country. It is what, I believe, will be conveyed abroad and the primary reason for that is the action of the Government in this matter. The Government in a few months, we understand, are going to borrow money. Do they think that those to whom they will have recourse for that money will lend it more readily if they believe, as the action of the Government in introducing this section must make them believe, that the Government misuse public money in order to secure political support? That is one of the consequences of the Bill and it is going to make the loan which the Minister for Finance proposes to float this year, or within a short period, a much more expensive transaction to the country than it would be if this section of the Bill had not been introduced. I know, of course, that in appealing to the Minister one is only appealing to deaf ears. The Minister and his party are already committed to that course and nothing will prevent them from following it. They are determined to remain in power and to use all the resources of the State, financial, military and police, to maintain that power. Therefore our exhortations and warnings go unheeded but one day or another a day of reckoning will come and, when it does come, let Ministers and those who are drawing pensions, and who will continue to draw pensions possibly when this Bill goes through, have no false sense of security and let them be under no delusions that this measure is going to form part of the permanent legislation of this State.

Dr. Ward

The Minister has taken advantage of this debate to deal with certain cases which I discussed on Second Reading, and he has either set out to mislead the House by the manner in which he dealt with these cases now, or he has been misinformed. He stated to-day that in regard to the person referred to in Question 21 on 13th June, 1928, that this man was never courtmartialled, that he consulted with the O.C. of the division and the Battalion Commandant and ascertained that this was either a concoction by me or that I was misinformed. I want to tell the Minister and the House that not only was this man courtmartialled but that the Battalion Commandant was a member of the court. I would inform the Minister for his own information that I was president of the court.

Mr. Fitzgerald

In order not to have misunderstanding, I want to tell the Deputy that what I said was that the man was not court-martialled—this is my information— but that he was reduced.

Dr. Ward

You said that he was not courtmartialled.

Mr. Fitzgerald

Yes, that is my information.

Dr. Ward

I say that he was courtmartialled and that the Battalion Commandant, whom you quote as having informed you that he was not courtmartialled, was a member of the court. So much for Question No. 21, which you appear to pride yourself on having effectively dealt with. I will now follow you to Question No. 26. In reference to Question No. 26, according to you——

An Ceann Comhairle

Third person, please, particularly where there is so much heat.

Dr. Ward

According to the Minister for Defence—the third and last person in this debate—this man mentioned in Question No. 26 on 13th June was very friendly to the Free State in January, 1928, and up to May and was awarded a pension in January.

Mr. Fitzgerald

A certificate.

Dr. Ward

The certificate was passed in January. It was all shrouded in secrecy. The man was never in the Free State Army. When I asked the question on 13th June the Minister said that the pension was awarded on 5th May, 1927, and that the first payment was made on 1st June, 1927. Now, however, since the Second Reading he has discovered a way out. That, of course, is very neat, but it is not very convincing.

Mr. Fitzgerald

What happened in that case was—

Dr. Ward

I know what happened.

Mr. Fitzgerald

A certificate of service was issued on 24th March. That was before April and May, during which the Deputy says that this man was definitely hostile.

Mr. Aiken

Why did not the Minister tell the truth to Deputy Ward in the first instance?

An Ceann Comhairle

Why will not Deputy Aiken allow Deputy Ward to make his own case and not make disorderly interruptions? Does not this prove the observation so frequently made from the Chair, that the House is a most unsatisfactory tribunal to decide questions of fact?

Dr. Ward

It is a wonder to me, considering all the time which the Minister had at his disposal to make up his brief and to reply to the case which I put forward on Second Reading, that he did not find something to say in regard to Question No. 24 which was discussed on Second Reading. I stated here that the man mentioned in that case never served in the Free State Army. He lives in the town of Monaghan and I do not think that he could have served in the Free State Army unknown to the people there. He is in receipt of a pension and I say quite definitely that he is not legally entitled to it.

Mr. Fitzgerald

Come along and prove it.

Dr. Ward

I am quite prepared to prove it if I get an opportunity. It is because things like that are happening and have happened that the Comptroller and Auditor-General ought to be allowed to see some of the evidence on which some of these pensions have been awarded. The Minister carefully evaded Question No. 25, which dealt with the case of a man who was in the wholetime employment of a public body in Monaghan, who was in that employment during the whole of the Anglo-Irish war, who was never absent an hour from his work during that time, who was on full pay all the time, and who never was absent an hour from his work during the Civil War. Yet, apparently, he gave military service in both these wars that entitled him to a pension.

The Minister has not given any explanation of that case, and I do not think that he will. I stated that I would cite as many cases as the Minister was prepared to deal with of people who are not entitled to draw pensions in Monaghan, and I have been as good as my word. To my own knowledge fully 60 per cent. of the people there who are getting pensions for political services are not entitled to them according to the terms of the Military Service Pensions Act. That is the reason why I want to see that the Comptroller and Auditor-General will be allowed to see the evidence on which these pensions are based. I stated previously that a sum of £368,000 had already been paid in gratuities to officers who retired from the Free State Army since 1924. That is a fairly large sum of money. These men have been pensioned according to rank and period of service, but how are we to know that they have held the rank attributed to them and that they have given the service in the Army which it is alleged they have given? I think that the Comptroller and Auditor-General should be allowed to see how that sum of £368,000 came to be expended.

An Ceann Comhairle

That is a different point surely, is it not?

Dr. Ward

Is it not a reason?

An Ceann Comhairle

The question of gratuities is not being discussed. We are on the question of pensions. The gratuity question is another matter.

Dr. Ward

All right. I have said all I wanted to say about that. I do not suppose that there is any use in continuing. I think that the flimsy case that the Minister has made and the futile efforts he has made to deal with the cases put up to him speak for themselves. Regarding the case of the man with a great national record in County Monaghan who has been refused a pension it is very hard to see why any additional evidence was necessary in such case.

"I have pleasure in testifying to the splendid national record of Mr. A. He took part in all the Volunteer activities within his area and owing to his connection with the movement lost his job. After the Truce he joined the National Army and served until he became incapacitated from a fall in barracks. He is a widower with three young children dependent upon him and, having no employment, his present circumstances can be easily imagined."

Mr. Fitzgerald

What is the date of that?

Dr. Ward

The date of that is the 4th May.

Mr. Fitzgerald

Of what year?

Dr. Ward

Of 1928.

Mr. Fitzgerald

The Tribunal was closed down before that date.

Dr. Ward

As I told the third person on Second Reading, this evidence was before the Board of Assessors and the Board of Assessors refused to give the man a pension. They refused to give him a pension because he would not support Mr. Ernest Blythe in the Parliamentary elections.

Mr. Fitzgerald

I do not see how a document dated the month of May, 1928, could have been before a Board which ceased to exist some time before that.

Dr. Ward

I say the substance of that certificate from General O'Duffy was before the Board of Assessors.

[An Leas-Cheann Comhairle took the Chair.]

Mr. Fitzgerald

Will the Deputy say what was produced before the Board of Assessors? He talks of a document which only came into existence after the Board ceased to exist, and he complains, in view of that document, that the action of the Board was wrong. I have never pretended, in dealing with these cases, that there may not be people who are getting pensions illegally. I think it is practically impossible, when you are dealing with such a large number of cases, not to find a flaw somewhere. What I have pointed out is that people get up in the Dáil and purport to make statements that certain persons are drawing pensions to which they are not entitled, and when I look up these cases I see that, so far as I have any information about them, that information is contrary to the information given across the Dáil. In these circumstances I have nothing to do except to leave the matter where it is until Deputies come along with something more substantial. Deputy Dr. Ward expects us to accept his statement when he says that a certain individual never served in the Free State Army, but without wishing to reflect on Deputy Dr. Ward in any way, I think he will agree that certain officers were in a better position to know the circumstances than he was. When these officers have given their assurance, there is no prima facie case which would justify me in reopening the case and in having that man charged in court with getting a pension illegally.

The Deputy said I did not speak in reference to the case mentioned in Question 24. He goes on to say that this man only got a pension for Party purposes. Now, when he was speaking on the Second Reading of this Bill he said: "It looks as if everybody was spying on us" and I asked him had he given in this case, such information as he would be in a position to give in the case of 21 and 22. He did not give any such information. He did not answer the question. He said he put these questions down on the 13th of last June and drew my attention to certain facts. He further said: "Considering that I have been available since if he wanted any information or to make any inquiry into these cases he could easily have got it." What facts did he give? None. He came along, having mentioned the case, with no facts to support him in June and on 5th December made the statement that this man was never in the Free State Army. That was the first time he mentioned it. He had not even said it on the previous occasion. Why did he not mention these facts on that occasion if he wanted to have the case re-opened? In this case, the Board only made one report and they granted him a certificate. If the Deputy has information, which is in the nature of evidence, to prove that the man is not due to get a pension it is his duty as an ordinary citizen without my approaching him, to produce that evidence. Instead of that, on the 5th December he got up and asked why I hadn't dealt with the case since June and said for the first time that the man was never in the Army. The fact that Deputy Ward says that he was not, is not going to be accepted by me as full proof that the man is getting a pension dishonestly. The Deputy gets up in his airy way and insinuates that there is something wrong in the majority of cases but the Minister cannot accept that only as proof.

He also complained about another man and says he can prove that the man was never in the service because he carried on his own employment. I do not know a great deal about that case but, I think as far as I remember, that the Board granted the pension, on the first application. There was no representation made thereafter. I know many cases of men who apparently, and very necessarily apparently, carried on their ordinary employment all through and at the same time were giving very real service. I do not know whether it is a case of that sort but it is not proof to say that the man gave no service because he carried on his own employment. The Deputy will remember that on the Second Reading Deputy MacEntee quoted a very truncated and unessential part of a case before the Public Accounts Committee and I pointed out that the man got a pension quite rightly, although at the time of the injury it looked as if he were pursuing his ordinary employment.

Dr. Ward

rose.

An Leas-Cheann Comhairle

Does the Deputy propose to make another speech?

Dr. Ward

I am only finishing the one I was at. The Minister interrupted me.

An Leas-Cheann Comhairle

Might I remind the Deputy that the Minister started to conclude the debate at six minutes past six?

Mr. G. Boland

Is this not Committee?

An Leas-Cheann Comhairle

The Minister started to conclude at six minutes past six.

Dr. Ward

I do not think he has yet concluded.

Mr. Lemass

Might I point out that he concluded that speech since?

An Leas-Cheann Comhairle

On Section 2?

Mr. Lemass

Yes.

An Leas-Cheann Comhairle

Section 2 must be finished, surely?

Dr. Ward

I will not keep you long.

An Leas-Cheann Comhairle

I do not know what has happened since I left the Chair. Before I left the Chair I did not call upon the Minister for Defence to conclude the debate until I saw there was no other Deputy who desired to take part in the debate.

Mr. Flinn

I desired to take part in the debate.

An Leas-Cheann Comhairle

The Deputy has already taken part in the debate on three different occasions.

Mr. Flinn

I can speak as often as I like on Committee.

An Leas-Cheann Comhairle

As often as the Chair allows the Deputy to speak.

Mr. Flinn

As often as the rules allow me.

An Leas-Cheann Comhairle

The Deputy may speak as often as the Chair allows him.

Mr. G. Boland

And not at all if the Chair does not allow him?

An Leas-Cheann Comhairle

Quite.

Mr. Boland

It is well to know that.

An Leas-Cheann Comhairle

Perhaps I might, for the information of Deputy Flinn and for the information of the House, say that Deputy Flinn started to speak at 5.59. The Deputy again started to speak at 6.5, and again at 6.6. That was a short speech for the Deputy. The Minister for Defence is called upon to conclude. If Deputy Ward says the Minister for Defence interrupted him and that he had no desire to conclude his speech, the Chair will allow him to conclude it.

Mr. Lemass

The Minister for Defence commenced to speak before you left the Chair. He concluded that speech, and after he concluded a number of Deputies spoke. Deputy Ward will conclude his speech presumably, but the debate is not over, nor has the Minister for Defence started to conclude——

Mr. Fitzgerald

I understood I was concluding.

An Leas-Cheann Comhairle

Will the Deputy suggest when the Minister will conclude?

Mr. Lemass

When the question as a whole is discussed?

An Leas-Cheann Comhairle

Will the Deputy state when the question will be discussed?

Mr. Lemass

When all the Deputies who desire to speak have spoken.

Dr. Ward

I had made most of the speech I intended to make when the Minister interrupted me the last time. I thought he was going to clear up the question of Mr. A. in Killeevan who has given such service, as was suggested by General O'Duffy. He disappointed me in that. He did not clear up that question. This certificate was, he says, issued a considerable time after the operations of the Board of Assessors had been terminated. That is inaccurate. This actual certificate bears the date of the 8th May, but the substance of this certificate was before the Board of Assessors. As I mentioned here on the Second Reading, I discussed this particular case with a member of the Board of Assessors, and he told me that this man's pre-Truce service was not such as would entitle him to a pension. Now that in itself is proof of my contention that these pensions are being awarded for political services, and it proves the necessity of the Comptroller and Auditor-General seeing the evidence. If that man was not entitled to a pension on his pre-Truce service, as I said on the Second Reading, there is no man in Monaghan who was. The evidence was before the Board of Assessors, and they turned him down for political and no other reasons.

Mr. Fitzgerald

Is the Deputy referring to the man referred to in columns 2148 and 2149?

Dr. Ward

Thomas McCloy, of Drumocoon.

Mr. Fitzgerald

I told the Deputy that my Department had written to him on the 21/1/'26 and 13/7/'26 and the 22/2/'27 asking him for additional evidence, and he failed to produce any evidence purporting even to be additional.

Dr. Ward

He failed to produce any evidence purporting to be additional when he had evidence from every officer in the area of the services he has given in the I.R.A.

Mr. Aiken

But not of Cumann na nGaedheal.

Mr. Reynolds

That man might not take a pension from the Government. There are such men all right.

Dr. Ward

Not in your country.

Mr. Fitzgerald

There were representations made for the man in that case from a very unusual quarter.

An Leas-Cheann Comhairle

If the Minister or the Deputy desires to make a speech either or both of them should stand up.

Dr. Ward

We were both standing and then sat down.

An Leas-Cheann Comhairle

If the Deputy is addressing the Chair he should stand up.

Mr. Lemass

I have some remarks to make concerning this section. I intend to confine my remarks to the section. This section has been introduced into this Bill for the purpose of ensuring that the proceedings of the Board of Assessors appointed under the Military Service Pensions Act shall be shrouded in secrecy for all time. The Minister must be aware that the operation of that particular Act has occasioned a considerable volume of suspicion throughout the country. The existence of that suspicion was made clear on the debate which took place in this Dáil. The suspicion has been mainly due to the fact that the Minister for Defence and the Executive Council have been at all times anxious to conceal the decisions of the Board of Assessors and the awards given by the Board of Assessors.

Mr. Fitzgerald

Never.

Mr. Lemass

At no time was any publicity given to the awards of the Board. When a Deputy asked for information from the Minister as to the names of persons in receipt of pensions that information was given to him in the most complicated manner which human ingenuity could devise. The Minister may make what defence he likes when this matter is raised in the Dáil, but he cannot possibly convince any reasonable person that he has not got in his Department an alphabetical list of the persons in receipt of military service pensions, with their full names and addresses.

An Leas-Cheann Comhairle

Will the Deputy show me how that arises under Section 2?

Mr. Lemass

The purpose of this section is to provide that the findings of the Board of Assessors shall be final and conclusive and binding on all persons. I am speaking against the passage of this section. I think it is good policy that the findings of the Board of Assessors should not be final and conclusive. I say that the passage of this section will only help to increase the suspicion which exists concerning the operations of the Military Service Pensions Act. I say that the passage of this section, particularly when the Government are advised by their legal adviser that it is not necessary, will tend to have that effect. The Minister here has, in the course of his speech, made various statements concerning the Government's attitude to these pensions. He said they were not anxious to conceal the identity of the pensioners but that they were only anxious to prevent publicity being given to the evidence upon which the pensions were awarded and that is why they are trying to make doubly sure that there will be no obligation to publish that evidence by the insertion of this section.

I say that the Minister has in the past put himself to considerable trouble in his efforts to prevent publicity being given to the identity of the pensioners. He may or may not have in his Department that alphabetical list to which I refer. I believe he must have it or else his Department must not be efficiently managed. Yet, when information concerning these pensioners was asked for, a list was published of names only without addresses, in every order, so that it would not be possible for any person outside the Minister's Department to identify any persons given on the list. The Minister in the course of his remarks a few moments ago said that the publication of the full names and addresses might injure the persons concerned. I cannot follow that argument at all. Surely the Minister is not contending that it is a disgraceful thing to be awarded a Military Service Pension. I cannot imagine anyone in the Minister's position holding that view. If that is not the implication of the Minister's remarks, I would be glad to know what he intended to imply. The Act implies that pensions should be awarded in respect of the rank, period and length of service given in the Irish Volunteers or the associated forces. If the Government are prepared to publish the names of the pensioners, why are they not also prepared to publish the rank in respect of which the pension was given and the length of service? Surely no injury could be done to anybody by publishing full lists of pensioners with their addresses, rank and length of service.

An Leas-Cheann Comhairle

The Deputy has not satisfied me how this refers to Section 2.

Mr. Lemass

I am arguing in favour of publicity.

An Leas-Cheann Comhairle

If the Deputy would argue on the principal Act as affected by Section 2 it would be much nearer to being in order.

Mr. Lemass

The Minister, in his speech, said he knew there must be a number of persons drawing these pensions illegally.

Mr. Fitzgerald

I did not say that. I said that I was not prepared to deny that nobody was drawing them illegally. I think it is humanly probable that there are people doing so. I could not say that I knew there were people drawing them illegally, as if I knew there were such people I would take proceedings immediately.

Mr. Lemass

The Minister at least admits the possibility of persons receiving these pensions illegally. He asks Deputies to make available for him any evidence concerning such illegal conduct. How can any Deputies make it available unless they are in a position to identify the persons in receipt of a pension? If the Minister wants to make doubly sure that no one will get a pension unless he is entitled to it under the Act, then it is in his own interests, in the interests of the public, and of the pensioners, to give the name, the address, the rank and the period of service. No injury can be done to anyone. The Minister's argument, that it would adversely affect the interests of the pensioner, does not hold water. On the Second Reading, the possibility of injury being done to persons resident outside this State was mentioned, but the fact that they are in receipt of pensions was already published. Those who might be prepared to take action against the interests of those pensioners know that they are in receipt of such pensions, and know that they must have had some period of service and held some rank in the Irish Volunteers.

The whole operations of the Military Service Pensions Act have been shrouded in secrecy, and consequently shrouded in suspicion as well. The passing of this section will only help to increase that suspicion. The Minister read for us the opinion submitted by the Attorney-General on the question as to whether or not the Comptroller and Auditor-General was entitled to demand the papers on which such awards were made. According to the legal adviser of the Government, the Comptroller and Auditor-General has not got that right. If the Attorney-General was right in his opinion, there is no need for this section. The introduction of the section implied either that the Government have not got full confidence in the opinion of the Attorney-General, or else they are prepared to admit that they have been acting in an illegal manner up to this. If this section is not necessary its introduction is unwise, because it helps to increase the suspicion that attaches to the operations of the Military Service Pensions Act. If it is necessary, then it is for the Government to come here and say that in withholding this information from the Comptroller and Auditor-General in the past they have been acting contrary to the letter of the Constitution. They are trying to have it both ways. They are trying to pretend that they acted legally in the past, while, at the same time, they are trying to secure the passage of this section through the Dáil. If this section is not necessary, this debate can be terminated now, to the gratification of everyone present, by an announcement from the Minister that he is prepared to withdraw the section. He should surely have no hesitation about it. The Dáil thanks the Ministry for its act of courtesy in introducing it. It is permitted to take the intention for the deed and to withdraw it again. It is only an act of courtesy according to the Minister, and yet this act of courtesy has given rise to most unseemly scenes in the Dáil. I admit it is a bit of a shock to some of us that the Government should be courteous in anything, but now that we have the statement from the Minister, that the section is only introduced as an act of courtesy he can withdraw it, and we are quite prepared to give him credit for the best intentions. The discussion will then be over and the suspicion created by the introduction of the section will be removed. That will be to the benefit of the Government, to the benefit of the pensioners, and no one else. In this matter it is not necessary to make doubly sure, as the Minister stated. Either the legal opinion offered by the Attorney-General is correct or it is not. If they are satisfied it is correct, that ends the matter. If they are satisfied it is wrong, then someone is to blame for the illegal practices that were permitted to take place hitherto. I suggest, however, that we can end this dispute now by the Minister withdrawing the section, and I ask him to do so.

Mr. G. Boland

There is one point I wish to have made clear. When dealing with one case where Deputy Ward stated that a man had never been in the Free State Army, the Minister replied that it might not be known to everyone in Monaghan that he was in the Army, or words to that effect.

Mr. Fitzgerald

I think we were talking about the Volunteers.

Mr. G. Boland

I understood Deputy Ward to say that the man had never been in the Free State Army, and that the Minister replied that he could be there without people knowing it. The conclusion I draw is that he could have been on secret service. I want to ask the Minister if a person who remained in civil employment, even though he was acting on the intelligence side, and in that way was, I suppose, of use to the Army, is entitled to a pension. Surely the Minister is not going to stand over giving a pension to such a man even though he was on their staff. I fail to see how it could be given. If that is not the case what other service could such a man give? I would like the Minister to explain that.

Mr. Corry

I want to get some information from the Minister. The Minister stated that he is prepared to look into cases that were mentioned to him, and that he is prepared to give every assistance to Deputies, so that they may discover these cases for themselves. Some time ago I looked for information from the Minister regarding pensions in my constituency. I got a list which showed that so and so had pensions of £50, £60 or £70 yearly, as the case might be, and that these people were from Cork. Cork is a very big county. I think I have laid my finger on a few particular cases in which parties are in receipt of pensions that they are not entitled to. In order to make sure, I want the addresses from the Minister. What I want from the Minister is that in reply to a question I asked him, he should give the names and addresses of the pensioners. I think the Minister is not acting fairly to this House when, in addition to refusing to supply information to the Comptroller and Auditor-General, he also refuses to supply full information to Deputies. I think every Deputy is entitled to information when he asks a question. When we asked a question as to the names and addresses of men in our constituency who are drawing pensions, we did not want just the names and the information that they resided in Cork. "Jack McCarthy of Cork" might come from North, East, West, or South Cork or Cork City. It would be very hard to know where he was from. It is very hard for us to get the information. Is the Minister prepared to give that information now—to supply the names and addresses of those pensioners? If he is not, then I think the duty of every Deputy is to pass a vote of no confidence in the Minister and put him out of office.

A refusal to supply that information means that the Minister is attempting to cloak these perjurers. Information has been given to us in such a manner that no man could find out who, for instance, is the Jack McCarthy who is drawing a pension. That is unjust and unfair. I should also like an explanation from the Minister as to why it is that men who were sworn into the I.R.A. by the Minister for Finance in 1914, who served until 1921, and engaged in several ambushes, as was borne out by the statement given by their Brigade O/C, and who joined the National Army for a couple of years, were then put out without pensions. The individuals I am dealing with were put out on account of the famous mutiny, for which other gentlemen in this House are drawing pensions. Is it fair that the ringleaders should get pensions and that their dupes should be put out without any? If we get full information we shall be satisfied, but if the Minister refuses the information we can only take it that he is trying to cloak these perjurers, and, if he is, there is only one cure for it, and that is to get rid of him.

Mr. Anthony

I am opposing this Bill for two reasons; primarily because I believe that the country cannot afford to pay all the pensions awarded within the last few years, and, secondly, because I believe that the Comptroller and Auditor-General should have access to all the papers and persons whenever pensions are being considered or have been awarded. If there were a review of the whole pension list it might mean that some pensions might be increased, but in the vast majority of cases they might be reduced, if not abolished altogether. I believe that we should have some sense of proportion in matters of that kind. Let us examine what other countries do, countries which admittedly are far richer and bigger in every way than this country. I am one of those who do not want to proclaim to the world that we are a poverty-stricken country, that we are not able to do anything off our own bat. We prefer to say that the country is what we ourselves are able to make of it, and can make it, if we have the will. Let us see what another country does. Let us take one of the richest countries in the world—Great Britain. Many men who went through the great European war and lost limbs in that campaign——

Mr. Fitzgerald

Is the Deputy in order? He seems to be discussing the original Act.

An Leas-Cheann Comhairle

I am afraid the Deputy is making a Second Reading speech rather than addressing himself to Section 2.

Mr. Anthony

I would not be allowed to proceed, apparently, because I was about to make so strong a case the Minister could hardly reply to it. Deputy Corry has referred to some cases in the Cork area in which Mr. A., Mr. B. or Mr. C. may appear as receiving a pension.

An Leas-Cheann Comhairle

It is not a question of individual cases. The question which arises under the section is the finality of the findings of the Board of Assessors, and the question is whether the findings should be final and binding and conclusive. The Deputy should address himself to that subject.

Mr. Anthony

And also the accessibility or otherwise of the Comptroller and Auditor-General to the evidence produced before this Board. We know of cases in Cork City and County where persons who are entitled to pensions have not got them. That is, perhaps, a side of the picture which might appeal to the Minister for Defence. On examining these cases we find that in the main the dependents of many of these young men who lost their lives in the Anglo-Irish war—some of them were university graduates—have not received anything in the way of recognition for the services these young men gave to the country. That is a matter which requires further investigation.

An Leas-Cheann Comhairle

Is the Deputy addressing himself to the military service pensions?

Mr. Anthony

Yes, and also having relation to the accessibility, as I have indicated, of the Comptroller and Auditor-General. At any rate, I am opposing the Bill for the reasons I have mentioned—that at least we should have some regard to the ability of the country to pay.

Mr. Carney

The Minister stated that any evidence that could be put forward by anybody in the country would be welcomed by him. Deputies on these benches have asked how people are to know whether or not those mentioned in the lists that were furnished are people who genuinely were entitled to pensions. These lists contain the names of the men and the counties they belong to and the amount of the pension. I should like to point out that in a number of places in this country certain names are very numerous. In Donegal there are two predominant names—O'Donnell and O'Doherty. In Glengevlin most of the people are called McGovern. In Fermanagh a large number of people are called Maguire. These are the areas with which I had to deal during the Black and Tan war and it would puzzle me to know whether or not a "John Doherty of Donegal" was the John Doherty that was in the Volunteers. There might be fifty or a hundred or two hundred John Dohertys. It is not helpful to me. I might have known one John Doherty, who was either a private or an officer in the I.R.A., and who gave distinguished services during that period, but how can I say whether or not that John Doherty is the man who has been granted the pension? If I were asked as that man's O/C, how can I say whether that John Doherty deserved a pension or whether he did not?

Mr. Fitzgerald

Was the Deputy ever an O/C?

Mr. S. Jordan

He was. You can ask the question here. He was an O/C over a good many.

Mr. Carney

It ill behoves the Minister to speak in the manner he did in reference to Deputy Ward, when he said that it was during the period of the Truce that Deputy Ward was most active. If the Minister wants to know anything about me he may say it sotto voce or sub rosa or whatever way he likes but there are Ministers on his own benches who know what I was, and the area I was in charge of, also. He does not, but it ill behoves him to talk about anybody. He is one of the men who lives in a glasshouse and cannot throw stones. He certainly cannot throw any at me. I should like to know what distinguished service he put in in the I.R.A. It was not under Section 2. In this connection we are asked to give carte blanche to the Government to freeze everything that has been done, to solidify it and to make it absolutely watertight if you like, that nobody in the future can come along and say that this is right or wrong. Everything that is done by these gentlemen must be taken as gospel, but we have pointed out that those things done by them are not gospel and we do not accept them as such.

It happened that in the working of this Military Service Pensions Act, when a man made an application he had to give the names of two officers who would vouch for the accuracy of the statement he made in putting in his application. If the Minister knows anything about the matter he will know this, that it happened in certain instances that the only officers that the applicants could get to put into their applications for pensions were perhaps of the National Army, and the men making application had never been in the National Army and were more or less, perhaps, opposed to the Government. Their applications, perhaps, were turned down because the officers would not vouch for the accuracy of the statements made; perhaps they may have been prejudiced. How do we know that they filled in the forms sent to them and vouched for the accuracy of the men's statement, as they were bound to do. We had no means of knowing that; neither has the Accountant and Auditor-General, and he never will have that knowledge until he has access to every bit of documentary evidence that can be produced in each case. My knowledge of these cases goes as far that I know these were men who were afraid to make applications, because they knew that the only men capable of giving information on their particular case were members of the National Army and would turn their application down, and would not, at least, vouch for the accuracy of their statements, or perhaps when they made applications these forms were cast into the wastepaper basket by the officers, with the results that men who might have been entitled to pensions never received them. What we want to know is this: Is there going to be any means by which the Comptroller and Auditor-General can find out whether a man is entitled to the pension he is getting or not? Is there any means by which an ordinary man in the street, or a man who took part in the I.R.A. movement can ascertain whether a certain man, say, called John Doherty, is a man who served in the Volunteers. Give us his name and address and we will be able to find out. The Minister said hardship would accrue if a man's name and address were given. I say no, because if a man was a soldier of the I.R.A., or in the National Army, and was entitled to a pension because of wounds or disease he should not be ashamed to have his name and address published. If it is legitimate and above board it should be an honour to that man to have his name and address published and not a hardship.

Mr. P. Hogan (Clare):

I hope I shall be in order in endeavouring to discuss Section 2, because, judging by the exhibition of the Standing Orders given by both Parties in the Dáil this evening, I can only say God help the country that says these are the two biggest parties in the State, for they both have been irrelevant—both the Minister as well as Opposition——

Mr. Boland

Tell us what the Labour Party wants.

Mr. Hogan

I am going to try and say what the Labour Party wants to know.

The President

And ought to say.

Mr. Hogan

What the President could not say if he tried, and tried hard. I want to revert to the question I put to the Minister a while ago. I think it contains the kernel of the whole position and situation. I asked him definitely in the case where an applicant for a pension was turned down, and where the applicant had new evidence to adduce had the Board of Assessors to ask the Minister for leave to release the files for a re-hearing of the case, and if that was contingent upon what the Minister said that everything in his Department was available for the Accountant and Auditor-General. In this case the Minister had to release the files for the Board of Assessors. If he did not, then, where are the files? They may not be directly in charge of the Minister, but who are they in charge of?

Mr. Fitzgerald

They are not in my charge.

Mr. Hogan

I do not mean in the Minister's personal charge, but are they not in charge of the Ministry.

Mr. Fitzgerald

No, they are in charge of the Board.

Mr. Hogan

But the Board is dissolved. Where are the files now? We are told they are not in charge of the Minister; he can only make his case in a kind of negative fashion. Can he give something positive?

The President

Any State documents are in my possession, or rather in my custody, and these are amongst the State documents.

Mr. Lemass

Has the President now learned that for the first time?

The President

No, I knew it well. It was on my own direction that they were placed in the particular place in this country where such documents are kept.

Mr. Cooney

Did you have some burned a few years ago?

The President

No, I leave burning to those with some experience of it.

Mr. Hogan (Clare):

And I shall leave irrelevancy in matters of debate to the two big parties in the country. I have got practically the information I wanted, so now we know that the information is available to the Minister for Finance and to the Executive Council.

The President

No.

Mr. Hogan

There is something about this whole Bill that I cannot understand.

The President

Certainly; I knew that when the Deputy stood up.

Mr. Little

May I ask the President why he says that the information is not available to the members of the Government?

The President

Because on the legal advice which is available to me it is not so available. As the Minister has explained, he was advised and the Public Accounts Committee were informed, that these documents were not available for the Minister for Defence and that he had no right to ask for them: that they were not available to the Minister for Finance, and that he had no right to ask for them; that the original Act said that. It was on that particular advice that the Minister for Defence and the Minister for Finance were unable to get it, and that they are kept from both one and the other by reason of that advice.

Mr. Lemass

And this section is only an act of courtesy?

The President

Yes.

Mr. Lemass

Would it be sufficient if we thanked the Government for their courtesy and asked them to withdraw the section?

The President

I appreciate the Deputy's remarkable politeness. It is exceptional.

Mr. Little

Would the President have any objection to introduce into the Bill on the Report Stage a clause stating that this is in no way amending the Constitution?

The President

The necessity does not arise, because it is not.

Mr. Corry

Is it those assessors who are financing the Shannon scheme?

Mr. Little

I suggest that even though you pass this you still leave the question open, because there is still a doubt in the minds of people as to the conflict between that particular section and a clause of the Constitution. Until that is finally decided by a court of law this legis lation is going to leave the thing in the mess that it was in before, because there are two points of view— the point of view of the Government and the point of view of the Comptroller and Auditor-General.

Mr. Fitzgerald

I said most of the things that I wanted to say in previous speeches that I made on this section. Deputy Little and other Deputies on his side have talked about doubt in the minds of people. We cannot legislate to remove doubt from everybody's mind. Deputy Lemass is concerned that people should be suspicious about anything the Government does. We cannot help it. I feel that nobody could be more annoyed than Deputy Lemass to know that when I go on the Continent to see my family and come back again certain organs talk about my mysterious movements in London. When two Ministers are on the closest and most intimate terms certain organs say that the meetings of the Executive Council are made lively by the fighting that takes place. No legislation will prevent people who like thinking these things from thinking them. Deputy Hogan kept on saying and asserting that the files had to be released for the Minister for Finance when additional evidence was required. Of course, that is complete balderdash. We do not hold the files. The files belong to the Board. As long as the Board was in existence it held them, and when it ceased to exist it handed them over and they were put in the strong room.

Mr. Hogan (Clare):

What does the Minister mean to say was complete balderdash?

Mr. Fitzgerald

What the Deputy said.

Mr. Hogan

I can give instances.

Mr. Fitzgerald

We do not hold the files. Deputy Lemass and Deputy Corry talked about this question of names and addresses. Deputy Lemass maintained that we had alphabetical lists. When questions were asked for a complete list of the names of everyone receiving pensions, I told the officials in my Department to get it ready. They were busy at the time, and produced it in the form most convenient to them. The case is argued on the other side in this way: Deputy Lemass says it is ridiculous for me to ask them to give information of any type of cases, as how could they give information when they do not know who the pensioners are. He derided the suggestion that anybody living outside the State could be adversely affected by the publication of the names. Is ample information to be given to anybody who wants to injure an individual who is outside the country so as to make him perfectly sure of his man? Deputies know perfectly well, in seven cases out of ten, when looking up the list for a particular district, who the people receiving pensions are. If you take a list, the vast majority of the people in a locality know exactly "who's who." Deputy Corry has some grievance. I presume he was referring to the cases mentioned in columns 2153-2154. We were unable to get the details of the cases. If Deputies, publicly in the Dáil or privately, ask me if a Mr. A.B. in Donegal or some place else who is drawing a pension of £70 is the actual Mr. A.B. of a particular townland or district, they get the answer either that he is or is not. That has happened time and again. Deputy Corry is not quite sure whether a man in Midleton who is drawing a pension is the A.B. on that list. To get such information he has only to ask whether that is the A.B. of such a place and he will get an answer whether he is or not.

Mr. Corry

I asked regarding the names of people in my constituency.

An Leas-Cheann Comhairle

The Minister must be allowed to conclude.

Mr. Fitzgerald

Deputies asked for lists in all sorts of permutations and combinations alphabetically arranged, and so on. We gave a list that involved a good deal of work in my Department. Any Deputy when he got the list could form a good idea as to who is getting a pension. Deputy Lemass is very concerned about the suspicion attaching to the Government in this matter. He says it is only brought in as a matter of courtesy, and he asks us to withdraw the section. I would not see a great deal of objection to withdrawing it, once I had the assurance that the question of the evidence being made available would not arise again. I know Deputy Lemass's manner well enough to know that once the thing is withdrawn he will be the first to sow suspicions in people's minds, and say after all was it not quite right it should be made available. Deputy Boland wanted to know about the possibility of a man being in the Army and doing his ordinary work at the same time.

Mr. G. Boland

I understood the Minister to say, in dealing with Deputy Ward's case, that a man could have remained at his ordinary civil occupation and yet be entitled to a pension. If that is so, his Army service would have been secret service. Were people entitled to pensions who remained at their ordinary occupations all through?

Mr. Fitzgerald

In the Army in its early stages, as the Deputy knows, men were not formally attested, and membership of the Army was not as clearly defined as if it were limited to people formally attested. In the Army it was quite possible for a man to appear to be carrying on his ordinary work while fulfilling the legal requirements of membership of the national forces. I am not making a legal pronouncement on that, but I think it is easily possible.

Mr. Boland

But take it as a fact that a man was known to have been in his civil employment all through. Surely the whole idea of the pensions is to compensate a man for something he has lost in civil life?

Mr. Fitzgerald

There are a great many men in this country whose ordinary civil employment in my opinion would not interfere with any other work they wanted to do.

Mr. Boland

Take the case of a man in the service of a public board.

Mr. Fitzgerald

The Deputy is putting a hypothetical case to me. I do not want to interpret the law. I think it was possible for a man who to all appearance was following his ordinary avocation to fulfil the requirements of membership of the National Forces. In the discussion on this section I have been accused of being out of order in departing from the section. The only reason I called the attention of the Chair to the fact that Deputy Anthony was not confining himself to this Bill but was talking about other Bills was because I thought when it came to answering him I would not be able to deal with the matters he discussed, or if I did his confrere, Deputy Hogan, or some other Deputy, would get up and make reference to the Government habit of talking away from the point under discussion.

Question put. The Committee divided: Tá, 66; Níl, 52.

Tá

Aird, William P.Blythe, Ernest.Bourke, Séamus A.Brennan, Michael.Brodrick, Seán.Byrne, John Joseph.Carey, Edmund.Collins- O'Driscoll, Mrs. Margt.Conlon, Martin.Connolly, Michael P.Cosgrave, William T.Crowley, James.Daly, John.Davis, Michael.De Loughrey, Peter.Doherty, Eugene.Dolan, James N. Law, Hugh Alexander.Leonard, Patrick.Lynch, Finian.Mathews, Arthur Patrick.McDonogh, Martin.MacEóin, Seán.McFadden, Michael Og.McGilligan, Patrick.Mongan, Joseph W.Mulcahy, Richard.Murphy, James E.Nally, Martin Michael.Nolan, John Thomas.O'Connell, Richard.O'Connor, Bartholomew.O'Donovan, Timothy Joseph.

Doyle, Peadar Seán.Duggan, Edmund John.Dwyer, James.Egan, Barry M.Esmonde, Osmond Thos. Grattan.Fitzgerald, Desmond.Fitzgerald-Kenney, James.Hassett, John J.Heffernan, Michael R.Hennessy, Thomas.Hennigan, John.Henry, Mark.Hogan, Patrick (Galway).Holohan, Richard.Jordan, Michael.Kelly, Patrick Michael.Keogh, Myles. O'Higgins, Thomas.O'Leary, Daniel.O'Mahony, Dermot Gun.O'Sullivan, Gearóid.O'Sullivan, John Marcus.Reynolds, Patrick.Rice, Vincent.Roddy, Martin.Shaw, Patrick W.Sheehy, Timothy (West Cork).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.Buckley, Daniel.Carney, Frank.Carty, Frank.Cassidy, Archie J.Colbert, James.Colohan, Hugh.Cooney, Eamon.Corkery, Dan.Corry, Martin John.Derrig, Thomas.Doyle, Edward.Everett, James.Fahy, Frank.Flinn, Hugo.Fogarty, Andrew.French, Seán.Gorry, Patrick J.

Goulding, John.Hayes, Seán.Hogan, Patrick (Clare)Houlihan, Patrick.Jordan, Stephen.Kennedy, Michael Joseph.Kerlin, Frank.Killilea, Mark.Kilroy, Michael.Lemass, Seán F.Little, Patrick John.McEllistrim, Thomas.MacEntee, Seán.Moore, Séamus.Mullins, Thomas.O'Connell, Thomas J.O'Dowd, Patrick Joseph.O'Kelly, Seán T.O'Reilly, Matthew.Powell, Thomas P.Ryan, James.Sexton, Martin.Sheehy, Timothy (Tipperary).Smith, Patrick.Tubridy, John.Ward, Francis C.

Tellers: Tá, Deputies Duggan and P.S. Doyle; Níl, Deputies G. Boland and Allen.

Motion declared carried.

Section 3 agreed to.

Mr. Fitzgerald

I move the following amendment to Section 4:—

In sub-section (2), line 11, to delete the word "national" and substitute the word "notional."

It was a printer's error.

Amendment agreed to.

Section 4, as amended, and Section 5 agreed to.

THE TITLE.

Question proposed: That this be the Title of the Bill:—

An Act to make the findings made or to be made by the Board of Assessors constituted under the Military Service Pensions Act, 1924, final and conclusive and binding on all persons and tribunals whatsoever to explain Section 4 of the said Act and the Second Schedule to the said Act and to amend the provisions of the said Act prohibiting double pensions.

Mr. Aiken

We object to this being the Title of the Bill. We say that the Title of the Bill should be "An Act to amend the Constitution." I think that the Dáil should hold that the Constitution should not be amended by implication. Undoubtedly, anybody reading the Constitution and then reading this Bill will say that the Bill is actually an amendment of the Constitution. Article 62 of the Constitution, I think, says that the Comptroller and Auditor-General shall have control of all disbursements and shall audit all accounts of moneys administered by or under the authority of the Oireachtas, and shall report to the Dáil at certain periods to be determined by law. If this Bill is passed and approved by both Houses, the Comptroller and Auditor-General shall not exercise the functions which he is entitled to carry out under Article 62 and the functions which it is his duty to carry out under Article 62. He cannot audit the account, and therefore he cannot report to the Dáil in the manner provided as to the disbursements of all public moneys. The Bill is undoubtedly an amendment of the Constitution, and the Title of the Bill should make some reference to that. The Bill should be entitled an Act to amend Article 62 of the Constitution so as to curtail the powers given to the Comptroller and Auditor-General under that Article. For that reason we object to the title of the Bill.

Mr. Little

When listening to the case in favour of this Bill we heard it openly declared that this was not an amendment of the Constitution, but we had the case made that it is an amendment of the Constitution. If you turn, for the sake of argument, to the Bill and suppose, for the sake of argument, that this Board is vested with all the virtues of a judicial tribunal, and that is putting it very high, rather higher than intended, then it would come under Section 69, which sets out that the judges shall be independent in the exercise of their functions and subject only to the Constitution and to the law. The judges there are subject to the Constitution. Therefore this must be subject to Article 62.

An Ceann Comhairle

What must be subject?

Mr. Little

All the judges, in the exercise of their functions, must be subject to the Constitution.

An Ceann Comhairle

How does that come into the title of the Bill?

Mr. Little

In this sense—I am arguing that this is a tribunal, that its powers are judicial powers, and, therefore, independent of the Comptroller and Auditor-General. Article 69 lays it down that the judges are independent, but that they are subject to the Constitution. But Article 62 lays it down that the Comptroller and Auditor-General must deal with all questions of money paid out through the Oireachtas. My point is this, that a question of law is really in doubt. There are two contentions. One is that this is an amendment of the Constitution, and another that it is not an amendment of the Constitution. I suggest that the Title should, in some shape or form, confirm that it is or is not an amendment of the Constitution or that should be stated in the body of the Bill itself. There should be something stating that it is an amendment, because otherwise it leaves things exactly as they were before.

An Ceann Comhairle

The Deputy is not saying anything about the Title of the Bill.

Mr. Little

But surely if you lay down in the Title that it is an amendment of the Constitution——

An Ceann Comhairle

There is nothing in the Title to say that it is an amendment of the Constitution.

Mr. Little

That is our point. That it should state that in the Title. Therefore, we object to the Title as it stands. We say that it should state that it is an amendment of the Constitution, because it is an amendment of the Constitution.

The President

That settles that.

Mr. MacEntee

That is as it ought to be.

Mr. Little

It is awfully cute, but that sort of cute trickiness is not the way to get proper respect for the Constitution.

An Ceann Comhairle

Do not let us be abusive on the Title.

Mr. Little

I would like to see the Constitution in this country so treated that we would all have regard for it. Now there is a question of doubt in law, and even this Bill or Act may ultimately be the subject of a case being stated in the Supreme Court as to whether this Bill overrides the Constitution.

An Ceann Comhairle

The Deputy has gone completely away from the Title of the Bill now. He has lost sight of the Title altogether.

Mr. Little

I do not think so.

An Ceann Comhairle

Yes, absolutely.

Mr. Little

The Title of the Bill reads——

An Ceann Comhairle

The Deputy need not read the Title now.

Mr. Little

We suggest that it is entirely overriding Article 62 of the Constitution and therefore it should be stated explicitly that it is an amendment of Article 62, or else the whole question is a matter of doubt.

Mr. Hogan (Clare):

The point I want to raise about the Title is that there is quite a difference between "Military Service Pensions Bill, 1929" and "Bille na bPinsean Seiribhise Mileata, 1929." There is quite a difference between the Title as given in English and the Title as given in Irish. The Title in Irish means "The 1929 Military Service Pensions Bill." It does not mean "The Military Service Pensions Bill, 1929."

An Ceann Comhairle

There is no Irish in the Title.

Mr. Flinn

The Irish is of no importance.

Mr. Hogan

Then why does it appear in Irish at the top of the Bill?

An Ceann Comhairle

There is not a word of Irish in the Title.

Mr. Hogan

Will you put the Title in Irish, a Chinn Comhairle?

An Ceann Comhairle

I am putting the Title as in the Bill, and there is no Irish in the Title.

Mr. Lemass

Are you passing the Bill, then, without any Irish Title?

An Ceann Comhairle

We are passing a Bill with a Title in which there is no Irish.

Mr. Little

Then what is the meaning of this thing in Irish at the back of the Bill?

An Ceann Comhairle

We are not dealing with that now.

Mr. Little

But it is there at the back of the Bill in Irish.

An Ceann Comhairle

We are dealing with what is on the front of the Bill, the Title.

The President

We passed the back and we are on the front now.

Mr. Little

One thing on the front and another thing on the back. Well, that is the limit!

Mr. Briscoe

I would like the Chair to give a ruling as to the interpretation this House shall put on Article 62 of the Constitution.

An Ceann Comhairle

The Deputy will recollect that the Constitution lays down that questions as to the validity of any law may be the subject of litigation in the High Court or the Supreme Court. Now, the Ceann Comhairle is neither the High Court nor the Supreme Court and, therefore, he could not answer the question.

Mr. Briscoe

For the purpose of transacting business in the House I presume Deputies are entitled to ask the Ceann Comhairle——

An Ceann Comhairle

For a construction of the Constitution? No. certainly not.

Mr. Briscoe

There were other occasions here when the Constitution was freely discussed and debated and interpreted from the Chair.

An Ceann Comhairle

The interpretation of the Constitution is not a matter for the Chair. That principle was laid down as far back as 1923.

The President

The Deputy is the most innocent of the lot.

Mr. Briscoe

If in this House business is transacted which is in opposition to what is laid down in the Constitution, has the Chair no right to point that out or to rule upon it?

An Ceann Comhairle

The Chair does not construe the Constitution. The House passes legislation and the question of the validity of that legislation is one which may in proper fashion be submitted to the courts.

Mr. Briscoe

If this House decides to pass legislation which is absolutely outside what is laid down in the Constitution, is it not the duty of the Chair——

An Ceann Comhairle

The Deputy rose to a point of order, and that is not a point of order.

Mr. Briscoe

If the Ceann Comhairle says that is not possible——

An Ceann Comhairle

The Ceann Comhairle did not say that anything was not possible.

Mr. Briscoe

You have not given any ruling.

An Ceann Comhairle

The Deputy is under a misapprehension. Surely he does not expect to put any kind of question he pleases and then, when he does not get a satisfactory answer, be vexed.

Mr. Briscoe

The Standing Orders which rule the procedure in this House are based specifically upon what is laid down in the Constitution.

An Ceann Comhairle

In some cases, yes.

Mr. Briscoe

In the Constitution are laid down specific rules dealing with the Comptroller and Auditor-General. We are now doing something which is in absolute contradiction to what is laid down, and I contend that, through the Standing Orders, we are doing something now which is not in order.

An Ceann Comhairle

We are not passing the Bill; we are only dealing with the Title.

Mr. Briscoe

According to himself, the Ceann Comhairle has no right to give a direction on that point. We maintain that we are quite clear that Article 62 lays down specific instructions as to the powers of the Comptroller and Auditor-General. It may appear very funny to the President that somebody is anxious to work, particularly in these things, in accordance with the instructions laid down for the Comptroller and Auditor-General.

An Ceann Comhairle

Let us get away from the Comptroller and Auditor-General. What about the Title?

Mr. Briscoe

Article 62——

An Ceann Comhairle

Do not mind Article 62.

Mr. Briscoe

I contend that in taking away certain powers from the Comptroller and Auditor-General under this Bill we should, first of all, introduce a Bill debarring investigation into the expenditure of money in this instance on the part of the Comptroller and Auditor-General.

Mr. Esmonde

Will the Deputy state why he has not put down an amendment to the Title? We do not know what he is urging on the House.

Mr. Briscoe

If the Ceann Comhairle suggests that this Title is in order——

An Ceann Comhairle

The Ceann Comhairle says it is absolutely in order.

The President

Will the Ceann Comhairle say whether it is in order to vote for or against the Title?

An Ceann Comhairle

That is another matter.

Mr. Little

An attempt was made to embody an amendment in the Bill. We made a genuine effort to get a definition introduced by bringing in a certain amendment and we failed to do that. We are now trying to show that the Title is wrong.

Dr. Ward

Are we not entitled to have the Title of the Bill in the Irish language?

An Ceann Comhairle

We are not.

Dr. Ward

If I were sure of the Irish for political graft Bill I would propose that.

Mr. Flinn

The Title does not cover the substance of the Bill.

An Ceann Comhairle

That has been ruled on. It does cover the substance of the Bill.

Mr. Flinn

The point I put to you is that the Title should be amended to take into account the fact that the Bill does by using the term "persons and tribunal whatsoever" include a person whose functions are defined in the Constitution. If it is contended on the one side that the Bill is necessary, if in fact the Bill which was introduced, that is, the Military Pensions Bill, did conflict with the duties of a particular officer as defined by the Constitution, that Bill itself is bad from the beginning, and if this Bill is merely a reiteration of that particular Bill then this Bill itself is bad from the beginning because it can be no better than the authority from which it is derived.

An Ceann Comhairle

The Deputy up to this point is completely irrelevant.

Mr. Flinn

If, in fact, the duties of an officer whose duties are defined under the Constitution are altered by this Bill then this Bill itself is inoperative.

An Ceann Comhairle

I want to call the attention of the House for the second time to the fact that the Deputy is completely irrelevant.

Mr. Flinn

Very well. In so far as this Bill interferes with an officer whose duties are defined under the Constitution itself it is either a constitutional definition or a constitutional amendment and as such could not be introduced in this form and could not either define or alter the Constitution simply by a side wind. I suggest that on that ground the Bill——

An Ceann Comhairle

The Deputy may sit down. He has not said anything to the Title so far.

Mr. Corry

I am amazed that a Minister with a reputation for angelic truthfulness, such as the Minister opposite is supposed to have, should put such a Title to the Bill. I suggest that it is absolutely false and irrelevant.

An Ceann Comhairle

False and what?

Mr. Corry

And irrelevant.

An Ceann Comhairle

The Title is not irrelevant.

Mr. Corry

Well, I suggest to the Minister that in order to maintain the name for truthfulness which he holds he should describe this Bill as a Bill for the protection of political hacks.

An Ceann Comhairle

That will do. The Deputy must sit down.

Mr. Corry

I think that would be a better Title.

Question—"That this be the Title to the Bill"—put.

The Committee divided: Tá, 63; Níl, 50.

Tá

• Aird, William P.
• Blythe, Ernest.
• Bourke, Séamus A.
• Brennan, Michael.
• Brodrick, Seán.
• Byrne, John Joseph.
• Carey, Edmund.
• Collins-O'Driscoll, Mrs. Margt.
• Doyle, Peadar Seán.
• Duggan, Edmund John.
• Dwyer, James.
• Egan, Barry M.
• Esmonde, Osmond Thos. Grattan.
• Fitzgerald, Desmond.
• Fitzgerald-Kenney, James.
• Hassett, John J.
• Heffernan, Michael R.
• Hennessy, Thomas.
• Hennigan, John.
• Henry, Mark.
• Hogan, Patrick (Galway).
• Holohan, Richard.
• Jordan, Michael.
• Kelly, Patrick Michael.
• Law, Hugh Alexander.
• Lynch, Finian.
• Mathews, Arthur Patrick.
• McDonogh, Martin.
• MacEóin, Seán.
• McFadden, Michael Og.
• McGilligan, Patrick.
• Mongan, Joseph W.
• Conlon, Martin.
• Connolly, Michael P.
• Cosgrave, William T.
• Crowley, James.
• Daly, John.
• Davis, Michael.
• Doherty, Eugene.
• Dolan, James N.
• Mulcahy, Richard.
• Murphy, James E.
• Nally, Martin Michael.
• Nolan, John Thomas.
• O'Connell, Richard.
• O'Connor, Bartholomew.
• O'Donovan, Timothy Joseph.
• O'Higgins, Thomas.
• O'Leary, Daniel.
• O'Mahony, Dermot Gun.
• O'Sullivan, Gearóid.
• O'Sullivan, John Marcus.
• Reynolds, Patrick.
• Rice, Vincent.
• Roddy, Martin.
• Shaw, Patrick W.
• Sheehy, Timothy (West Cork).
• Tierney, Michael.
• Vaughan, Daniel.
• White, John.
• White, Vincent Joseph.
• Wolfe, George.
• Wolfe, Jasper Travers.

Níl

• Aiken, Frank.
• Allen, Denis.
• Blaney, Neal.
• Boland, Gerald.
• Boland, Patrick.
• Bourke, Daniel.
• Brady, Seán.
• Briscoe, Robert.
• Buckley, Daniel.
• Carney, Frank.
• Carty, Frank.
• Cassidy, Archie J.
• Clancy, Patrick.
• Colbert, James.
• Cooney, Eamon.
• Corkery, Dan.
• Corry, Martin John.
• Derrig, Thomas.
• Doyle, Edward.
• Everett, James.
• Fahy, Frank.
• Flinn, Hugo.
• Fogarty, Andrew.
• French, Seán.
• Gorry, Patrick J.
• Goulding, John.
• Hayes, Seán.
• Hogan, Patrick (Clare).
• Houlihan, Patrick.
• Jordan, Stephen.
• Kennedy, Michael Joseph.
• Kerlin, Frank.
• Killilea, Mark.
• Kilroy, Michael.
• Lemass, Seán F.
• Little, Patrick John.
• McEllistrim, Thomas.
• MacEntee, Seán.
• Moore, Séamus.
• O'Connell, Thomas J.
• O'Dowd, Patrick Joseph.
• O'Kelly, Seán T.
• O'Reilly, Matthew.
• Powell, Thomas P.
• Ryan, James.
• Sexton, Martin.
• Sheehy, Timothy (Tipperary).
• Smith, Patrick.
• Tubridy, John.
• Ward, Francis C.

Tellers:—Tá: Deputies Duggan and P. Doyle; Níl: Deputies G. Boland and Allen.

Motion declared carried. The Dáil went out of Committee.

Fourth Stage ordered for Thursday, 20th February.