Dáil Éireann debate -
Thursday, 4 Feb 1937

Vol. 65 No. 2

In Committee on Finance. Supplementary Estimates. - Vote 46—Primary Education.

Minister for Education (Mr. Derrig)

I move:

Go ndeontar suim Bhreise ná raghaidh thar £10 chun íoctha an Mhuirir a thiocfaidh chun bheith iníoctha i rith na bliana dar críoch an 31adh lá de Mhárta, 1937, chun Costaisí Bun-Oideachais, maraon le hAoisliúntaisí Múinteoirí Scoile Náisiúnta agus Deontas-i-gCabhair, etc.

That a Supplementary sum not exceeding £10 be granted to defray the Charge which will come in course of payment during the year ending on the 31st day of March, 1937, for the Expenses of Primary Education, including National School Teachers' Superannuation and a Grant-in-Aid, etc.

This Supplementary Estimate arises out of the case of a national teacher who was arrested on the 18th July, 1931, and brought before the Military Tribunal on the 30th December, 1931. He was found guilty there. On giving an undertaking to the Tribunal to enter into recognisances, he was released from custody on the same date. In view of the fact that the offences of which he was convicted were committed before the passing into law of the Act, the Tribunal decided to recommend the Executive Council not to enforce, in his case, the provisions of Section 31 of the Act on the matter of the forfeiture of his emoluments as a teacher. Under that section, the teacher automatically forfeited his appointment and became disqualified for seven years from the date of conviction from holding employment payable out of moneys voted by the Oireachtas. The teacher resumed duty, and has been paid salary by the Department from the 8th December, 1931.

The Executive Council, early in 1932, intimated to the teacher that they were prepared to grant him a free pardon. A free pardon, however, was not granted, in fact, until the 11th December, 1934. A question then arose as to the legality of the payment of salary and capitation grants to this teacher in the period from the 8th December, 1931, when he resumed duty, to the 11th of December, 1934. The Comptroller and Auditor-General, in his report, raised the question of the disqualification of this teacher from holding office under Section 31 of Constitution (Amendment No. 17) Act, 1931. The matter was the subject of discussion before the Public Accounts Committee. It has been examined carefully since in the Departments concerned. It was originally thought that legislation would have to be introduced, and should be introduced, to rectify the matter, and make legal the payments which had been made to this teacher, but it has not been found practicable to do so. It was intimated to the Public Accounts Committee, when the matter was under discussion there, that, subject to its views, a Supplementary Estimate would be introduced to regularise the payments made to this teacher. The Committee, in its final report, dated the 8th July, 1936, on the Appropriation Accounts for the financial year 1934-35, expressed agreement with the procedure proposed. As a result of the agreement of the Committee of Public Accounts with this course of action, the present Supplementary Vote is being introduced. It is to cover the amounts illegally paid. The amount paid by my Department to the teacher in respect of the period from the date on which he was granted a free pardon was £1,247 approximately. The amount of the Supplementary Estimate now presented is £10, leaving a balance of £1,237 to be met out of savings under the relevant sub-heads of the Vote.

Mr. Fitzgerald

The Minister's statement has not been quite clear to me. This case cropped up about two years ago. I am speaking from memory now of what took place at the Public Accounts Committee. My memory is that the public officials before the Committee gave a promise that the Government would introduce legislation amending Article 2a of the Constitution. The Minister has not explained how it is that from the end of 1931 until the end of 1934 his Department continued to pay money which was clearly illegal. The form of the Supplementary Estimate seems to me to be wrong.

Article 31 (3) of the Constitution says:—

"(3) Every person convicted while this section is in force of an offence mentioned in the Appendix to this Article shall from and after such conviction be for seven years from the date of such conviction disqualified for holding any office or employment remunerated out of the Central Fund or moneys provided by the Oireachtas or moneys raised by local taxation or in or under or as a paid member of a board or body established by or under an Act of the Oireachtas.

The next sub-section goes on to deal with the question of free pardon and the quashing or annulment of conviction and it is quite clear that anybody who is convicted of a charge before the Military Tribunal is debarred from holding any office remunerated out of public moneys for a period of seven years. If that conviction is quashed, then the person concerned may be paid as from the date of conviction. If he receives a free pardon, then he may hold such office from the date of the free pardon. It is, therefore, abundantly clear that the law most specifically refuses power to the Government, or even to a local body, to employ a man so convicted between the time of conviction and the time of free pardon.

The Minister said that this was adverted to early in 1932 and that this man was told he would get a free pardon. If that had happened, apparently, the Department was aware in early 1932 that it was breaking the law of this country, having told the man that he would be granted a free pardon, which, apparently, he did not get until the end of 1934. I should like to know what is the reason for that lapse. Was it that the free pardon required that he should appeal for the free pardon and that he failed to do it? If not, was it that the Department, from 1932 until the end of 1934, consistently and regularly broke the law; that the Government regularly broke the law which is supposed to be binding on the rest of us? The heading in the Estimate here speaks of the amount of salary and capitation grant paid. We know that the Government could not pay any salary to this man. Consequently, to my mind, what we should be told in this Estimate here is that it is a free gift. Clearly, we are not paying the man a salary, because even now it is illegal that he should have drawn salary during that time. What the Government is proposing is that a man who was brought before the Military Tribunal shall now receive a free gift from the Government of £1,247. It cannot be called salary. It can be nothing but a free gift, and this Supplementary Estimate, as I judge, as put before us, is really asking us still to do an illegal thing, because the law lays it down most specifically that no man can hold office and draw an emolument paid out of public taxation.

The Minister has given us no explanation as to why it is that this illegality was persisted in by his Department over a period of two years. He has given no explanation as to how it is that when this man was told by the State at the beginning of 1932 that a free pardon would be available for him, that pardon was not granted until the end of 1934. I do not know whether or not the failure to grant the free pardon was because this man did not take the necessary action of appealing to the Government for a free pardon. The Minister has not told us the reason the Government broke the law and kept on still breaking it for another two years. If the man did not take the necessary action and the Government broke the law to assist him, I think then that the whole thing is scandalous. However, I do not want to be taken as saying that, because the Minister has given us no explanation about this matter, or, at best, a most inadequate explanation of the case, and I think that the fact that the Government during a number of years broke the law by doing a thing which was most specifically required by the law not to be done, requires more explanation than has been given by the Minister. I should like to know why his Department continued to break the law during that period, and why that lapse from 1932 till the end of 1934 was allowed to go on without that free pardon being granted, and whether it was caused by this man refusing to accept the pardon, although he continued to get the money.

Mr. Dillon

Did he apply for the pardon?

Mr. Derrig

Yes.

Mr. Fitzgerald

When?

Mr. Derrig

I cannot say.

Mr. Dillon

What was the cause of the delay between 1932 and 1934 in the issuing forth of the pardon?

Mr. Derrig

I do not know what the cause of the delay was. I presume the position was not adverted to. Deputy Fitzgerald forgets that it was the Government of which he himself was a member that, in fact, reinstated this teacher and who were responsible for paying him in the first instance. When I became Minister for Education the position was that this teacher had already taken up duty and was in receipt of a salary. Perhaps, to be strictly legal, had I been aware of the position, which I was not, I should have stopped payment to the person concerned when I heard of the case. The position was that when I became Minister for Education he was already in receipt of these payments; so that some time at any rate would have elapsed—probably not such a long time as did, in fact, elapse—before he received the free pardon, in view of the change of Government. All I can say, in explanation of the delay, is that the matter was not adverted to, and the seriousness of the position from the legal point of view was not understood by the Department of Education.

Mr. Fitzgerald

Would the Minister mind reading out again that part of his brief concerning 1932?

Mr. Derrig

Yes. I said that on the 12th January, 1932, the Executive Council decided that in the event of an application by this teacher for a free pardon being submitted by him, they would be prepared to give it consideration.

Mr. Fitzgerald

Did he act on that then?

Mr. Derrig

I do not know. All I know is that he was informed of the decision. However, I can find out for the Deputy and let him know.

Mr. Fitzgerald

Yes, I do think it is rather important.

Mr. McMenamin

In connection with Deputy Fitzgerald's point, I should like to point out that the Minister stated, with regard to the Public Accounts Committee, that they approved of the application of this Supplementary Estimate for this matter. I should like to inform the House, however, that that was done in conjunction with the statement made by the official that the advice of the Attorney-General had been sought on this matter and that he advised legislation to deal with the matter. For that reason, the Public Accounts Committee agreed that the Supplementary Estimate should be asked for in this connection—that is, because they understood that legislation was going to be introduced.

Mr. Fitzgerald

Yes. My memory is—of course I am relying on my memory—that a promise was given to the Public Accounts Committee that the law itself would be changed, and that it was in the light of that promise the Supplementary Estimate was recommended. At the present moment, the law still is that a man who has been convicted under those circumstances should not hold any such office. What is the difficulty?

Mr. Derrig

The intention undoubtedly was to introduce legislation and, as the Deputy says, we can take it that a promise of that nature was made to the Committee on Public Accounts. As a result, however, of further examination of the question from the legal point of view, very grave doubts were expressed by the legal advisers of the Government as to the feasibility of amending the Constitution retrospectively; so that my advice at the present moment is that legislation is not contemplated for that reason.

Mr. McMenamin

Then, the statement made to the Public Accounts Committee was not correct?

Mr. Derrig

It was correct at the time, on the information that was supplied to the officials at that time. They were advised at that time that legislation was, in fact, necessary. Subsequently, the question was examined more carefully and the opinion is now held that it would be difficult to amend the Constitution retrospectively to legalise these payments.

Mr. McMenamin

Then the authority of the Public Accounts Committee was got on a statement that was not correct.

Vote put and agreed to.