This section contains a phrase with these words "the Constitution of Ireland lately enacted by the People." Will the Minister tell us, first of all, in what enactment or series of enactments, were the people given power to legislate in this country and, secondly, whether what has been discussed as the Constitution is not an amendment of the Constitution that was in being here, and if not, why not?
Constitution (Consequential Provisions) Bill, 1937—Committee Stage.
Question proposed: "That Section 1 stand part of the Bill."
The Constitution has been enacted by the votes of the people recently. I understand that Deputies opposite have already raised the question as to the power of the people to enact this Constitution. All I have to say is that the Constitution has been enacted by the votes of the people and the present measure is brought in connection with that enactment.
Would the Minister mind addressing himself to the exact question that was asked: under what Act was such power conferred on the people? That was the question that was asked. Perhaps he might enlighten the House, or does the Minister think that, as we have already had so many absurd pretences in connection with the Constitution, so many real falsehoods, an additional one like this does not matter? Will the Minister not answer the precise question asked?
The question does not arise.
It does.
We are asked to accept in this Bill a statement which is not yet proved to be accurate. There was a Constitution in this country from 1922. In that Constitution legislative power was given to a body called the Oireachtas. That body could have, if it so wished, given back power to the people to enact legislation but it failed to do so. As long as that Constitution ran, the only legislative authority in this country was in the Oireachtas. The Oireachtas did not give away that power to anybody else. They did not re-put it into the hands of the people. How does it come then that the people enact anything?
Does the Deputy question the power of the people to enact the Constitution?
I question the power of the people to do this: If the law of the country is that the Oireachtas enacts legislation, and if that is not changed, as it could have been changed by legislation, and if something happens which is declared to be legislation by the people, then I ask where is the power of the people to legislate? It is nowhere in the old Constitution. It could have been derived from the old Constitution, but it was not derived from it.
All power is supposed to come from the people under the old Constitution.
Undoubtedly, but in the old Constitution all legislative power was vested in the Oireachtas so that the Oireachtas was the only body with power to legislate. The Oireachtas could have changed that but it did not. How do the people enact?
Is it the Minister's contention that the people can legislate on the very same lines as the Oireachtas can legislate? If the people can enact a Constitution by virtue of some inherent power and bring that legislation into force, surely the people can enact ordinary legislation by the same inherent power?
Section 1.
We shall have a division on this if we cannot get an answer to the questions put. Deputy Linehan makes the point wider. If the people can enact a Constitution, they can enact ordinary legislation.
When the Opposition Deputies formed the Government of the country they told us a lot about the will of the people. Now when they get it they are objecting to it.
That last answer shows the sheer ignorance of the Deputy on the matter expressed. The people can be given power to enact law but they were not given it. If the Deputy thinks that that power was passed on to them then the Deputy must agree that the people could to-morrow pass a law about transport or about cattle. Can they do it?
Why did the Dáil put it before them?
I think you will have to get over the elementary stages before you could understand that.
Question put.
The Committee divided:—Tá, 58; Níl, 31.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Seán.
- Breathnach, Cormac.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corish, Richard.
- Corry, Martin J.
- Davis, Matt.
- Derrig, Thomas.
- De Valera, Eamon.
- Everett, James.
- Flynn, Stephen.
- Fogarty, Andrew.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Heron, Archie.
- Humphreys, Francis.
- Hurley, Jeremiah.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Keyes, Michael.
- Killilea, Mark.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- Maguire, Ben.
- Meaney, Cornelius.
- Moore, Séamus.
- Morrissey, Michael.
- Moylan, Seán.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Pattison, James P.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Níl
- Bennett, George C.
- Benson, Ernest E.
- Brennan, Michael.
- Brodrick, Seán.
- Cole, John J.
- Cosgrave, William T.
- Daly, Patrick.
- Dockrell, Henry M.
- Esmonde, John L.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Giles, Patrick.
- Gorey, Denis J.
- Keating, John.
- Keogh, Myles.
- Linehan, Timothy.
- McGilligan, Patrick.
- McGovern, Patrick.
- McGowan, Gerrard L.
- McMenamin, Daniel.
- Mongan, Joseph W.
- Nally, Martin.
- O'Higgins, Thomas F.
- O'Leary, Daniel.
- O'Neill, Eamonn.
- O'Shaughnessy, John J.
- O'Sullivan, John M.
- Redmond, Bridget M.
- Ryan, Jeremiah.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Bennett and O'Leary.
Question declared carried.
SECTION 2.
Question proposed: "That Section 2 stand part of the Bill."
What does this section mean?
The Deputy is a lawyer and presumably knows what it means.
And the Minister poses as such, and does not know.
No. I do not pose as a lawyer.
What does this mean?
The general object of the Bill, A Leas-Chinn Comhairle, is as explained by the Minister for Justice on the Second Reading. It is to ensure that there will be continuity in legislation, and that the changes which have come about in connection with the operation of the new Constitution, which will come into effect on 29th December, will not have the effect of causing any dislocation. The object of this measure is to ensure that the legislative machinery will continue, and that there will be no dislocation. The method under which that result is sought to be arrived at is to give the Executive Council— which will be the Government under the new Constitution—power to make orders on the same lines as were made in 1922 under the Adaptation of Enactments Act when a somewhat similar change was being made on the coming into operation of the Constitution of Saorstát Eireann. It is entirely a legal matter.
Will the Minister refer me to the sub-section of Section 2 which gives the power to make an order?
I am only explaining the general terms of the Bill. I did not say it was included in Section 2. Section 2 deals with the general adaptation of the expressions "Saorstát Eireann" and "Irish Free State" and makes provision with reference to matters that have come into operation. They shall be construed and have effect in like manner as they were construed and had effect immediately prior to the date of the coming into operation of the Constitution in relation to anything done or to be done or an event occurring or a period or series of periods beginning after the coming into operation of the Constitution. The expressions "Saorstát Eireann" and "Irish Free State" are to be construed and have effect as meaning Ireland. There is this further provision in paragraph (c): "in relation to anything done or to be done or an event occurring partly before and partly after the coming into operation of the Constitution"; that is, which will be partly completed afterwards, and it makes arrangements so that there will be no break in the continuity with reference to the appropriate legislation in that regard. The object of the section is to modify the expressions "Saorstát Eireann" and "Irish Free State" so that such statutory instruments as refer to these shall be carried on and shall have the same force when the new Constitution comes into operation.
Following the Minister's explanation, I take that as being the full content of Section 2. We have passed two measures called the Control of Manufactures Acts. In one of those the definition of national does not correspond with the definition of national in the old Constitution, nor does it correspond with the definition of national in the present Constitution. Am I to take it that that word in relation to anything done prior to the coming into operation of the Constitution of Saorstát Eireann and in relation to anything that happened afterwards means Ireland? The Minister will see that it was a definition by which it was attempted to ensure certain things for nationals of this country with regard to manufactures in the country. I think the word "national" was not defined in such a way as to include Ireland. I am bound to take it from the Minister's explanation that hereafter the word "national" means anybody who is Irish. If that is so there is a big change effected. I would like to know if that is so.
It is not sought to make any change, but simply to carry on the existing position. As far as I know, the general object of the measure is to carry on the existing position. The Deputy says a change is being effected. I may not be competent to say whether or not a change is being effected, but the advice I have received is that the object of this measure and of this section is simply to carry on the existing situation.
It makes no change, then?
So far as I am advised.
So this does not affect the present situation; it is only a question of a change of name? I would like to have that made clear before the bonfires are lit, merely over the changing of a name.
It does not affect the present situation.
I would like to have that on record, that the Minister is aware of what he is saying when he declares that this carrying into operation of the Constitution effects no material change and it is only a question of a name.
The Deputy can misinterpret what I am saying very skilfully. I did not say it makes no material change. I said the general object of the measure is to ensure that there will be no dislocation and that the existing situation with regard to legislation will be carried on after the new Constitution comes into operation.
I am going to interpret the Minister's words by reading portion of sub-section (2):—
No adaptation of the expression "Saorstát Eireann" or the expression "Irish Free State" by virtue of the foregoing sub-section of this section shall operate so as to extend the meaning of such expression as to include therein any area which is, for the time being, not within the area and extent of application of the laws enacted by the Oireachtas.
Everybody knows it makes no change.
No change whatever. There is a bit of a label stuck on and we are to have bonfires lit for that. Remember that this does not change the position. If the Minister is afraid to say it, I will say it for him. I think we can agree to the section on the basis that it means nothing.
Question put and agreed to.
Section 3 agreed to.
Question proposed: "That Section 4 stand part of the Bill."
On Section 4, I would like some explanation of the necessity for those sub-sections which oust the courts in favour of the Taoiseach. What is the meaning of sub-section (2)?
Sub-section (2) leaves it to the Taoiseach to determine questions as to the most appropriate particular official person or body or governmental authority under the new Constitution. It follows on the lines of the Adaptation of Enactments Act, 1922, from which it is taken almost word for word.
I presume we take that with sub-section (3) of the next section. I want to get that clear.
I do not know what the Deputy wants to have made clear.
The Minister says this is giving power to the Taoiseach to determine certain things. It is quite clear it does and it adds that the decision of the Taoiseach shall be final. It does not say when that decision shall be made. There is a corresponding sub-section in the next section which relates to government orders. It says:
Every order made by the Government under this section shall, unless such order otherwise provides, have and be deemed always to have had effect as from the commencement of this Act.
If I take the analogy of that, then the situation would appear to be that at any time, say, ten years hence, the Taoiseach may come to a conclusion with regard to some correspondence between an official in the new State and an official in the old State and that that will operate as having a retrospective effect going back ten years. That would be a pretty serious situation and I would like to ask what is this supposed to have reference to and what is the importance of it and how may the legal situation hereafter be changed by any decision made by the Taoiseach?
The Deputy asks me how will the legal position be altered. I think he should be in a position to answer his own question and to know what way it is going to alter it. This provision is not going to make any change in the existing situation, which is that the President of the Executive Council, under the Adaptation of Enactments Act of 1922, has power to decide these matters where a dispute arises. I do not know whether, in fact, a dispute has arisen. If a dispute had arisen and it became necessary for the President to determine the point, I have no doubt that the legal advisers to the Government, if they felt that further provision was necessary to cover the circumstances, would have made such provision in the present Bill.
Is there any danger that the Taoiseach might, deliberately or otherwise, delay in adjudicating a matter like that or is it possible that a question might not be put up to the Taoiseach for a number of years and that he would then give a decision which would have retrospective effect? Will no period be fixed during which that sub-section might have the effect of operating retrospectively to the detriment of some official or somebody else.
In that case, the matter would probably be dealt with under the next section, where the Government has power to make certain adaptations and modifications. If it were found necessary that the adaptation should have retrospective effect, the Government would make an order under Section 5.
They need not make an order under Section 5. Suppose the Government of the day find themselves in difficulties and they can see a way out if they can give to some new official the powers possessed by, say, the Revenue Commissioners in relation to matters that should arise in court. The Taoiseach by saying, "I find that he is the corresponding official to the officials who at one time had certain powers"—by this simple decision as to correspondence between two people he could carry over and give into the possession of a new official powers previously possessed by another body. Is that what is intended?
That would not be retrospective.
I am not talking about retrospection at the moment. There is no prohibition of retrospection in Section 4.
If the Taoiseach does something that he is not entitled to do under the code governing adaptations, I presume the courts will be there to deal with the position.
I am asking as to the intentions before we get to a court interpretation. What is the intention as regards this provision?
The intention is the same as under the Act of 1922.
How does the Minister interpret that?
To remove doubt.
Are we not putting the Taoiseach into a position in which the courts might be helpless so far as retrospection is concerned?
I do not think that the courts would be helpless.
We are making the law. Are we putting the Taoiseach into a position in which the courts cannot question what he has done? The courts cannot override the law.
The courts have their functions.
In face of the statement that the decision shall be final?
I have already informed the Deputy that, if it is necessary to have an adaptation, it will probably be done under Section 5. A specific Order will be made and the House will have an opportunity of discussing it.
That is supposed to be the case under the amendment on the paper?
Yes.
We shall deal with that afterwards. That is not in this section. The House need not necessarily have an opportunity of discussing the matter.
Let us get on with the job. These fellows like to hear themselves talking.
There is one man who does not like to hear himself talking and I admire his discretion.
I propose to put the question.
If we do not get a satisfactory reply, we shall give Deputy Fogarty some exercise. If he cannot talk, he will walk.
The Deputy has been told that the intention is that the power should not be made use of retrospectively, and that it is only intended to apply in cases of dispute arising between Governmental authorities. In those cases, the Taoiseach would have the determination of the question. The provision is exactly the same as was in the 1922 Act. I cannot see how the Deputy thinks that a question will arise now when no such question has arisen in the past 15 years.
Is it not intended to be retrospective?
No.
But it may be, as drafted.
The Deputy could have put in an amendment.
I did not know what was intended. The Minister might have brought in an amendment to make clear that it was not to be retrospective. Will the Minister get the advice of some of his officials as to whether it is clear that it is not retrospective? We could adjourn for a few minutes until he receives that advice. I submit that it can be retrospective.
I shall submit any points raised to the advisers of the Government.
Would not this point arise on the next stage?
Not if we pass it now. I am asking the Minister to take advice as to whether, as drafted, this provision can have retrospective effect.
The only chance is to ring the bell and let us walk round again.
The question is: "That Section 4 stand part of the Bill."
We are waiting for the Minister's answer.
I have told the Deputy that, if I think there is any point in the matters he is raising, I shall ask the advisers of the Government to consider whether or not amendments are necessary. I am told that, in this case, an amendment is not considered necessary.
The Minister has at last been told that such a determination could not be retrospective.
In the opinion of my adviser.
I should like to have some reason for that advice. If the Taoiseach determines a question with retrospective effect, is not his decision final?
Yes.
Where do the courts come in to prevent his decision being retrospective? Surely that is a simple point to determine.
The courts are there.
The courts cannot decide against a law passed by this House which states that the matter is to be finally determined by the Taoiseach.
What does the Minister mean by saying "the courts are there"? Where? Are they not ousted by this provision?
How can they be ousted? They have jurisdiction in connection with determining questions that may arise under Section 5, for example, and the Deputy thinks that the Government would adopt an ingenious method of using the Taoiseach to get over the courts. I do not think they would be likely to get away with that, but one cannot see the decision the Deputy has in mind which would not be properly made as a specific adaptation by the Government under an Order, and if it is made under an Order, it will come automatically under the jurisdiction of the courts.
I should like to be very clear on this. The question is to be determined by the Taoiseach, whose decision, according to this Bill, is to be final. It is either final or it is not final. The Minister says it is not— that the courts are there—but he does not say that the courts have any overriding power in respect of an Act of the Oireachtas. I should like to know if the Minister is saying that the courts definitely have the power to override the decision of the Taoiseach, which is stated in this Bill to be final, or is it merely a problematical matter the deciding of which in the Supreme Court at some future date may cost the State a lot of money?
The powers of the Taoiseach are confined to determining an issue as between two disputing persons, bodies or Governmental authorities, as to which is the appropriate authority.
Where is the sub-section confining the dispute to an inter-departmental dispute?
That is the position that has existed under the 1922 Act.
Apart from that, what do the terms used mean? I cannot see any phrase which refers to a question between two official persons, or bodies, or Governmental authorities as to which should be the authority. It does not say that.
That is what is meant to be said, and that is what it says, in my opinion.
Is it not becoming clearer that this Bill is not properly drafted?
The Deputy was operating for a great many years under precisely the same drafting.
Maybe, but that is no answer. Maybe there were different intentions. I am talking about how closely you have wedded your intentions and the language in which they are incorporated.
If the Deputy assumes that a future Government would try to devise means of getting around legislation, I think there are several ways of dealing with such a situation. The Deputy does not seem to have much confidence in the future Taoiseach, or in his sense of responsibility to the people.
All this is highly irrelevant to the question here—what does sub-section (2) mean, and whether a determination by the Taoiseach, with retrospective effect, is not carried by the section. I suggest it is.
Question put.
The Committee divided: Tá, 56; Níl, 27.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Seán.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corish, Richard.
- Corry, Martin J.
- Derrig, Thomas.
- De Valera, Eamon.
- Everett, James.
- Flynn, Stephen.
- Fogarty, Andrew.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Heron, Archie.
- Humphreys, Francis.
- Hurley, Jeremiah.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Keyes, Michael.
- Killilea, Mark.
- Kissane, Eamon.
- Lawlor, Thomas.
- Lemass, Seán F.
- Little, Patrick J.
- Maguire, Ben.
- Meaney, Cornelius.
- Moore, Séamus.
- Morrissey, Michael.
- Moylan, Seán.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Pattison, James P.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Walsh, Laurence J.
- Ward, Conn.
Níl
- Bennett, George C.
- Benson, Ernest E.
- Bourke, Séamus.
- Brennan, Michael.
- Brodrick, Seán.
- Cosgrave, William T.
- Daly, Patrick.
- Esmonde, John L.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Giles, Patrick.
- Gorey, Denis J.
- Keating, John.
- Keogh, Myles.
- Linehan, Timothy.
- McGilligan, Patrick.
- McGovern, Patrick.
- McMenamin, Daniel.
- Mongan, Joseph W.
- O'Higgins, Thomas F.
- O'Leary, Daniel.
- O'Neill, Eamon.
- O'Shaughnessy, John J.
- O'Sullivan, John M.
- Redmond, Bridget M.
- Ryan, Jeremiah.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Bennett and O'Leary.
Question declared carried.
SECTION 5.
I move the amendment on the Order Paper:—
To add at the end of the section a new sub-section as follows:—
(4) Every order made by the Government under this section shall be laid before each House of the Oireachtas as soon as conveniently may be after it is made, and if either such House shall, within twenty-one days on which such House has sat after such order is laid before it, pass a resolution annulling such order, such order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
The object of the amendment is to make provision for bringing orders made by the Government under the section before each House of the Oireachtas. It was intended that this provision would be in the Bill but it was omitted. It was also omitted from the 1922 Act.
If it is on the lines of the 1922 Act there is a strange omission in the Bill. It was so left that the Government's retrospective adaptation might have been carried through by them and not published. This amendment carries us some length. During the discussion on the last section the Minister used the phrase that there was an amendment on the Order Paper which would give the Dáil an opportunity to discuss any of these orders. This amendment does not do anything of the sort. It simply means that the order is to be brought in "and if either such House shall, within twenty-one days on which such House has sat after such order is laid before it, pass a resolution annulling such order, such order shall be annulled accordingly..." That is the ordinary form of order that comes in but it is not the type of order that gives the Dáil a chance to discuss it. The order that necessitates that the Dáil must discuss is one that says it shall not be valid until it is affirmed. This order can lie on the Table for 21 days, and unless the Government is so disposed the 21 days may have passed without the Dáil getting an opportunity to discuss the matter at all. The order is then useless. If the 21 days have passed there is no value in raising a discussion, even though it is going to lead to a vote against the order. If Ministers deliberately use this order, and the Dáil does not get a chance of discussing it, then why have they brought in an order requiring an affirmative vote before it becomes affirmative? We have had experience of that before in the use of this order. In fact, motions were put down but, because of the impossibility of fitting in discussion of such motions with the disposal of Government time, there was no question of discussing them and matters became law by lapse of time. The Minister may defend this kind of order as one that is commonly made. It is, but it is not an order that gives the House any rights. It only gives rights if the Government so wishes.
Amendment agreed to.
Question proposed: "That Section 5, as amended, stand part of the Bill."
What is the necessity for having this order retrospective?
The intention is that there should be consistent interpretation from the coming into force of the new Constitution, and that there should not be any variations from time to time. The intention is to try to secure the same interpretation right through, after the Constitution comes into force.
Why the retrospective point?
So that if an order is made some years after the Constitution comes into effect, it will be consistent. There might be some inconsistencies if this retrospective power were not there.
There are two things at issue. Something may occur requiring decision five years after the Constitution comes into operation. It may be necessary not to have any breach of continuity, but that can be done without making this legislation operate retrospectively, to make legal anything illegal that may have been done in the meantime. This goes the whole way and gives power to make it retrospective and to have retroactive effect. There is a difference. Generally when there is this patchwork arrangement contemplated, it is necessary to see that there is no breach of continuity, but that may be done without prejudice to any matters affected and without invalidating things that happened. This allows, and the contemplation is, that these matters shall be validated; that there shall be a new decision which shall have retrospective effect from the commencement of the Act. Why is that necessary? I can see the necessity of having no breach of continuity. Why have such breach of continuity voided by invalidating all that happened in the meantime?
In the particular case that the Deputy has in mind, it is hardly likely that the Government would seek to apply an order with retrospective effect. The necessity for this retrospective clause is to preserve consistency. If there is a definite upsetting of something that has gone before. I do not think that the Government would approach it by making an adaptation order. Presumably they would deal with it by legislation.
The whole tenour of this is to make it retrospective with invalidating effect. The phraseology used is such as if it were contemplated that every order should be retrospective. Why should that power be taken?
The opinion of the legal advisers of the Government, after their experience of the past 15 years, is that the Government should be given more power of elasticity. In accordance with that, they have made a specific adaptation superior to the general adaptation in the preceding section. Under this section they are seeking power to enable them to have more elasticity. As I have said, from their experience they feel that special circumstances may arise, and that it is necessary to have this power. They are simply going on their general experience as to the operation of these adaptation orders in past years.
Then we might get declared here what is this experience in the concrete which leads to this. I do not know of anything that leads to it.
Has the Deputy had any experience with regard to these orders being contested, or of the state of affairs that he envisages having arisen?
I have no concrete example of such an order being made, That is the first point. The Minister says that the experience of the Government's legal advisers is such as to make them demand more elasticity. What is that experience? Is there one concrete case that can be given to support that, one single example?
There are certainly cases.
Can we be told of one?
The legal advisers of the Government are of the opinion that there should not be this hiatus: that it is bad, and they simply want to prevent a dislocation in the future as far as they can. It may not be necessary, but they are going on their past experience.
Is the Minister so bullied by the legal advisers that he cannot ask them, "why do you want this," before he comes in here, and so have some example before his mind? Can we have one example given to warrant us in passing this? I would like to hear if there is one. Is there one example in the past 15 years that can be adduced to the House to warrant this power being given?
There may not be a specific example available, but the legal advisers of the Government, acting on their general experience, think that it is necessary.
Who told the Minister that? Did the legal advisers say so?
Yes.
And did the Minister not ask them "why"?
It is their duty to see that the law is made water-tight.
Surely it is their duty to give reasons, unless the Minister just takes what they say. I want to find out if any reason has been given—any example in the last 15 years, which the Minister can recollect, that could be regarded as a sufficient reason for the House to pass this. I do not know of any.
General experience.
Founded on what?
Founded on dealing with those orders.
How many orders have been made?
I do not know.
Have there been any?
I am informed that they are made every year.
Can we be told the name of one?
There are statutory rules and orders—numbers of them.
With retrospective effect?
Every week we have a number of them on the Dáil Order Paper.
Is there one that can be mentioned with retrospective effect?
The coming into effect of a new Constitution is an important matter, and I think the Deputy will concede that it is necessary that the legal advisers should see that every precaution is taken to ensure that there will be no dislocation: that everything will run smoothly, and that matters of interpretation will be consistent as far as possible.
Can a concrete example be given of one matter that looms as an important matter in the eyes of the legal advisers on which they have demanded this clause, and in respect of which the Minister is disposed to give it to them?
One case put up is in connection with the old Public Health Act. Different Ministers are referred to in different parts of that measure. The experience of the law advisers has shown that one part may have reference to the Minister for Local Government and another to the Minister for Justice. The Adaptation Order will have to take cognisance of that.
Is the Minister satisfied with that as an explanation?
Well, it is an example, and the Deputy has been looking for examples.
Is it one that satisfies the Minister, one that warrants this clause being passed?
I think it is the duty of our legal advisers to see that all precautions are taken to ensure that there will not be any dislocation: that no serious constitutional crisis will arise through failure to take the necessary precautions beforehand.
These advisers must have been speaking very crossly to the Minister recently. Did the Ministry, as a whole, do anything to annoy them?
The question is: That Section 5, as amended, stand part.
I am against this retrospective clause. Would the Minister say if this is contained in the old Adaptation of Enactments Act?
No.
So that it is a complete novelty?
Yes, based on experience.
And the experience is what the Minister has told us?
That was one example.
The only one that the Minister could give in 15 minutes' wriggling. This is a deplorable exhibition. The whole thing is a farce.
Question put.
The Committee divided: Tá, 55; Níl, 28.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Seán.
- Everett, James.
- Flynn, Stephen.
- Fogarty, Andrew.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Killilea, Mark.
- Kissane, Eamon.
- Lawlor, Thomas.
- Lemass, Seán F.
- Little, Patrick J.
- Maguire, Ben.
- Meaney, Cornelius.
- Moore, Séamus.
- Morrissey, Michael.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corish, Richard.
- Corry, Martin J.
- Derrig, Thomas.
- De Valera, Eamon.
- Moylan, Seán.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Pattison, James P.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Níl
- Bennett, George C.
- Benson, Ernest E.
- Bourke, Séamus.
- Brennan, Michael.
- Brodrick, Seán.
- Byrne, Alfred (Junior).
- Cosgrave, William T.
- Daly, Patrick.
- Dockrell, Henry M.
- Esmonde, John L.
- Fitzgerald-Kenney, James.
- Giles, Patrick.
- Gorey, Denis J.
- Keating, John.
- Keogh, Myles.
- Linehan, Timothy.
- McGilligan, Patrick.
- McGovern, Patrick.
- McMenamin, Daniel.
- Mongan, Joseph W.
- O'Higgins, Thomas F.
- O'Leary, Daniel.
- O'Neill, Eamonn.
- O'Shaughnessy, John J.
- O'Sullivan, John M.
- Redmond, Bridget M.
- Ryan, Jeremiah.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Bennett and O'Leary.
Question declared carried.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill."
Is there any point in Section 6? Does it mean anything?
It is simply to carry on certain provisions with regard to the Central Fund. As the first sub-section shows, the Central Fund, as contemplated in Article 11 of the Constitution, is described as the Central Fund of Ireland, and the rights and liabilities attaching to the Central Fund hitherto will attach to the Central Fund of Ireland after the Constitution comes into operation.
The Minister used the phrase "carrying on". Is that a general description of the Bill?
Yes.
Just carrying on?
Yes, carrying on.
Question put and agreed to
SECTION 7.
Question proposed: "That Section 7 stand part of the Bill."
Is this the same?
Yes, the same.
Is there any other phrase the Minister could give us except "carrying on"? A lot of phrases suggest themselves.
Making progress.
Making progress— it is like a crab walking backwards.
Question put and agreed to.
SECTION 8.
Question proposed: "That Section 8 stand part of the Bill."
This is a constitutional novelty, I am sure.
Probably—I do not know.
Is it really new?
Yes.
A big change?
A big change.
The Chair sees neither the Deputy nor the Minister—neither has risen.
What is the meaning of sub-section (5): "If no such seal as is provided for in the foregoing provisions of this section is available at the commencement of this Act..."? Is there such a seal available before the commencement of the Act?
I do not think the seals are available at present.
Will the Minister explain, in connection with the affixing of the seal, why it may be done by the Taoiseach or the Tanaiste, or a secretary, or other officer of the government authorised by the Taoiseach? Has the Minister reflected that in a neighbouring country the seal of a local authority was secured by a financier and that in consequence huge sums of money were lost by the municipality? In this case, if you are going to hand the seal from one person to another, it is obvious that there will not be respect for the seal and there is a danger of its being abused.
Where does the Minister get power to provide the seal? There is power to use the seal, but, so far as I can see, there is no power for the buying of one or the making of one.
Is there anything in mind about the type of seal or about the design or anything like that?
The Minister has not yet discovered power under the Bill to have a seal at all.
I was under the impression that the President explained to the House what the design of the new seal would be.
I am sure he explained it to the Minister and will he not tell us again?
Will the Minister deal with the other point, as to why more than a single person is to be held responsible for the use of the seal?
The obvious answer, I think, is that a single person may be ill or unable to act at a particular time. My experience as a Minister is that there have always been two persons for that reason.
Are there not four in this?
I thought the Deputy was making the point that there should be only one.
Yes, one, or an alternative Minister appointed by the Executive Council; but officials are now brought in under this Bill.
It is considered necessary, apparently, that there should be four.
Why not five?
The reason is to give the greatest possible latitude consistent with safeguarding the position that Deputy Cosgrave has in mind. What is going to happen if there is nobody available to affix the seal?
It is horrible to contemplate.
There is, first of all, the Taoiseach, then there is the Tanaiste, and, in the event of one being out of office, the other immediately operates. Presumably, the Executive Council will, in the event of the illness of the second person, appoint a third Minister. But why bring in officials? After all, the seal must have some importance. It is apparently given a position of some significance. We want to make sure that a person with ministerial responsibility alone will have the use of it. I was asking the Minister if he can tell us why officials are brought in.
The position is that the Government direct, at an Executive Council meeting, that the seal be affixed, and this applies to the actual affixing of the seal. I do not know whether Deputy Cosgrave has in mind that the seal must be affixed in the actual presence of the Minister or by the Minister.
It is not an operation which occurs very often. It is an operation of some importance, because once it is affixed it stands for something. What I want to make sure of is that a Minister will be present when the seal is being affixed.
I will look into the matter.
Is it contemplated that four people shall be authorised and only four?
Yes, that is considered necessary.
Is it also considered desirable to limit it to four people— two governmental and two official?
It is.
Is that in the section?
That is the intention.
Where is it in the section? The Taoiseach is one, the Tanaiste is another, the secretary is another, and then there is another officer.
Two or more officials.
No, two or more to start off with. Read the whole sub-section.
The intention is that normally the Secretary and the Assistant Secretary to the Executive Council would be the two officials authorised.
That is not here. Authorised to do what?
To affix the seal.
There is nothing about affixing the seal in this section. That is a new point. Who affixes the seal or who may affix it?
It is not a new point. That has always been the position.
What has always been the position?
Ministers have not to affix the seal themselves.
The section says: "The seal of the Government shall, when affixed to any instrument or document, be authenticated by the signature of the Taoiseach or of the Tanaiste or of a secretary or other officer of the Government authorised by the Taoiseach to act in that behalf." Affixed by whom?
By the officers appointed under this section.
Who are they?
I submit that there is nothing in the section authorising any Minister or officer, or even the Taoiseach, to affix a seal to anything, because it directs here that the affixing of the seal shall be authenticated by the signature of certain people, but there is not a word about who will affix the seal.
Who affixes the seal? Is there any provision about it yet at all?
The existing procedure is that the Government may order that the seal shall be affixed. It is affixed either by the Secretary or the Assistant Secretary of the Executive Council. It is the intention that the existing practice in all these cases shall be carried out as far as possible.
On that point, if it is the intention to carry on the existing practice, there must be some means of authenticating the seal. You have changed the method of authenticating the seal, but you have not changed the affixing of the seal. If it is necessary to change the means of authenticating the seal, it is also necessary to provide some means of affixing the seal.
The point is that the machinery provided now is as satisfactory as that which has been carried on for the past 15 years. The seal has been affixed constantly during that time. Yet the Deputy insists on raising these "footy" points.
Why put in the authentication section at all if there is no need for it?
Is the procedure for affixing the seal going to be supported by anything——
Not as far as I am aware.
It is merely hallowed by the usage of the last 15 years. I do not know where we are. The Minister tells us that it is the intention of the Government to confine the authentication of this peculiarly affixed seal to four categories of people. Is that the amendment the Minister promises to introduce at a later stage?
The Deputy is saying something that I have not said. I said that I would look into the point raised by Deputy Costello. I did not say that I would introduce an amendment. I do not intend to introduce any amendment if I can avoid it.
I wish you would say that of the Bill, that you did not intend to introduce it or to say anything about it.
The Deputy had plenty of time to bring in amendments if he wished. He has wasted two hours in bringing forward debating points.
I have not wasted much of the Minister's time. Until we are told about the number of persons who can authenticate this, we cannot go on. Is there a firm intention with regard to the number of people who will be allowed to authenticate the seal?
Yes.
How many are there to be?
Four persons will be authorised. Presumably one person would be sufficient to authenticate.
Then it is the intention to have the authentication of the seal when affixed confined to four people at one time?
Yes.
Would the Minister say where sub-section (2) bears that out? "The seal of the Government shall, when affixed to any instrument or document, be authenticated by the signature of the Taoiseach or of the Tanaiste or of a secretary or other officer of the Government." I suggest that under the Interpretation Act "other officer" means "other officers" in the next sub-section where we read: "More than one officer may, at any time, be authorised under the next preceding sub-section of this section to authenticate by his signature the seal of the Government, but such authorisation of two or more officers shall not render the signature of more than one such officer necessary for the authentication of the said seal." Surely the whole phraseology of the section is in regard to a big number of persons, a plurality of persons, much more than four?
If it is necessary for the conduct of business that there should be four, or even more, then they can be appointed.
But the Minister told me that there was an intention to confine the authentication to four.
No.
The Minister said that, but it may have been wrong.
It is not confined absolutely to four. Though it is thought that four will be sufficient, circumstances may arise when four, five or six might be required. I cannot foresee these circumstances. I am not responsible for the phraseology of the draftsman.
Would the Minister say if there are persons authorised by the Taoiseach other than the Tanaiste or the secretary, how that authorisation can be proved? Supposing there was some minor officer authorised to authenticate the seal, some person who is not so well known as the Secretary of the Department, and the point is raised, "What authority have you to put that authentication on the document?" how will that authorisation be proved?
If it is sealed with the seal of the Government, every order or other instrument "shall be received in evidence without further proof." If the Government seal is affixed, that is sufficient.
If it purports to be authenticated as provided by the section, that is to say, if it is signed by the Taoiseach or the Tanaiste, then it is quite clear; but if it is signed by an individual of whom nobody ever heard, purporting to act under authorisation, I suggest that will have to be proved, and I want to know how it will be proved.
He will presumably have the same authorisation as any other officer appointed.
In other words, there will not be any necessity to prove authority?
I do not see that there is any provision here for proving authority.
Is there anything which makes the proving of it unnecessary.
That is one of the Deputy's points.
It is not one of the Minister's bright points.
Question put and agreed to.
Question proposed: "That Section 9 stand part of the Bill."
How many seals are there under sub-section (2) at the moment?
The Deputy can put down a Parliamentary question.
If I get a parliamentary reply from the Minister. How many are there? Are there many more than the official seals?
I suppose the courts have seals in addition to the Government. I have no knowledge of what seals there are outside the Departments of State.
Amongst other people—say, executive authorities? I thought we would get some enlightenment on the little seals.
Question put and agreed to.
Question proposed: "That Section 10 stand part of the Bill."
How does Section 10 bring the Prevention of Electoral Abuses Act into the county councils? We were told it did.
Yes, it does.
How?
Because it was one of the measures which were repealed under the Seanad Eireann (Consequential Provisions) Act, 1936, which is now being revived under the section.
It applies to the new electoral colleges—the seven county councillors?
We are not discussing the electoral colleges at present.
We were told on the Seanad Bill that this matter was mended by the Consequential Provisions Bill, and we were referred to the Minister in charge of the Bill for an explanation.
No explanation is required. The Prevention of Electoral Abuses Act operates in this case.
Where seven people are elected by a county council to become members of the electoral college for the new Seanad, is there anything in this Act or in the Act that is being brought back into force here to show that it applies to those people? I suggest there is nothing in this Act to show that.
There is enough in it.
This point was raised on the Seanad Bill and has not been explained yet.
I have answered the Deputy's point by saying that the Prevention of Electoral Abuses Act is being revived in connection with the election for the Seanad.
With all due respect, to say that does not answer the point. The Prevention of Electoral Abuses Act never applied to the people who will become electors under the new Seanad Act. At any period in its existence it never applied to the seven people who will be selected by Deputy Corry's friends on the Cork County Council as electors under the new Seanad Act.
It was you selected them. You selected the committees anyway.
The Prevention of Electoral Abuses Act never applied. Its application to those people was never contemplated. It is certainly no answer to the point for the Minister to get up and say that this Bill he is introducing is bringing the Act back into force, and that it is now going to apply to the people who will be put on the electoral colleges, because there is nothing in this Bill or in the original Act to say it does apply to them.
If the Deputy thinks that the Electoral Abuses Act is not sufficient, he ought to try and have it amended.
Then will the Minister give facilities for the introduction of a Private Members' Bill to make it quite clear that those nominees of county councils who are to form portion of the electorate for the election of members of the Seanad will be prevented from accepting bribes for their votes? I raised this point on the last stage of the Seanad Bill, and I raised it in all seriousness, because I regard it as a matter of paramount importance that any dealings in votes by those people who are nominees of county councils, or by members of the Dáil, if you like to put them all on the one plane, should be clearly and specifically provided against by law. It is a matter of very vital importance in connection with an election of this kind. If any abuses once creep in, in connection with the election of Senators, then not merely will we get a bad type of Senator but we will get the new Seanad brought into very considerable disrepute, which is a thing that we on this side of the House, at all events, want to avoid. I raised this point in all seriousness. I am not yet satisfied, because of the fact that a new type of electorate is being created ad hoc for the purpose of the Seanad election, a type of electorate which never existed before, that the provisions of the Prevention of Electoral Abuses Act will apply to that new type of body which is to be selected by the county councils.
Deputy Corry rose.
Now we are going to get some legal advice.
I wonder by what process does the Deputy consider that county councillors are always open to bribes?
I never said anything of the sort.
Was that his experience?
I never said anything of the sort.
It has been quite evident here for the past two hours that there is deliberate obstruction going on on the part of three legal gentlemen who apparently have no place to practice except in this House. I would suggest, A Chinn Chomhairle, that they should not practise here.
The Chair would remind the Deputy that the Chair is to judge whether there is obstruction or not, and that the matter before the House is whether the Corrupt Practices Act applies to certain electors.
That is in Section 9.
It is not in Section 9. That is the very point.
With all respect to the legal luminary who supported the Minister, there is this very definite point raised by Deputy Costello—that there is a new type of electorate coming into being under the Seanad Electoral (Panel Members) Bill. The point has been put, and can be met in an easy way, as to whether or not that electoral body is subject to the Prevention of Electoral Abuses Act, and if so, what is the linking up of the different sections? All the Minister has told us is that something was prohibited by the Act of 1936, and that now the whole thing is revived. There immediately, of course, jumps to one's mind that there was not this particular type of electorate when the Act of 1936 was passed, and there was not, of course, this type of electorate when the Act of 1933 was passed. It may be the situation that the words are so general in those Acts that they meet the new body, but it may also be that the old Acts are so tied up with references to Seanad elections and Dáil Eireann elections that they do not meet the new electoral bodies of seven. If the situation is that those Acts do apply, that is capable of explanation, and is capable of very simple explanation. Would the Minister give it to us?
Certainly. If the Prevention of Electoral Abuses Act has been found satisfactory for both Dáil and Seanad elections, where the electors were the ordinary people of the country, since 1923, why should that Act not be sufficient to deal with the new electorate?
Is that the answer?
Yes. If the Deputy has any fault to find with the Act, let him say in what respect it is deficient and not capable of carrying out this work satisfactorily.
The Minister is answering one question by asking another?
I am taking a leaf out of the Deputy's book.
But not the same questions. Here is a point which can be traced through Acts, and the Minister should be able to do it. We have not got that information from him.
The point is that the matter has been raised by the Deputy on another measure which is going through the House.
And when it was raised I was referred to this Bill.
Exactly the same provisions will apply to the election of the new Seanad as applied to the old Seanad.
The point was raised on the Seanad Electoral (Panel Members) Bill, and when it was raised there we were told it was a matter which fell for discussion on this Bill. Now we are raising it here, this being the place where we were told it could most appropriately be discussed.
I submit that the Deputy is not raising any point whatever.
I am raising what I am entitled to raise. I am asking the Minister to satisfy the House before this passes that a promise given to us is being carried out. The promise was that what we may familiarly call the Corrupt Practices Act applied to the new group of seven nominees put up by each county council. A suggestion has been made that it does not, and the suggestion has been backed up by those references to the novel situation that the new body never was in existence before and the new body never could have been contemplated by the old Act. It is possible that the old Act does not apply to the new body. If it does, it is easy to see how it does, and we want that information.
The offences which are laid down in the Prevention of Electoral Abuses Act presumably are offences of a general nature and do not require to be attached specifically to particular types of election. They are abuses that arise in connection with elections generally, and, therefore, bringing in the Prevention of Electoral Abuses Act here should be quite sufficient to cover any abuses that may arise in the forthcoming Seanad election.
Did the abuses referred to in the Corrupt Practices Act apply to local government elections?
Yes.
They did not. There is the extent of the Minister's knowledge.
At any rate, they applied to the Dáil and Seanad elections.
There is a way of testing it. Will it apply to the type of person who is going to be on the electorate for the Seanad?
I just wish to raise one other point. I hesitate to do so. The fact is I am terrified of being accused by Deputy Corry of obstruction and of endeavouring to improve or sharpen my legal practice at the expense of Deputy Corry's patience. Section 4 of the Act of 1923 provides a definition of treating. I base this issue that I am putting forward here by reference to that section, which I take at random. Sub-section (2) sets out that "every elector who corruptly accepts or takes any such meat, drink, entertainment or provision as is mentioned in the preceding sub-section shall be guilty of treating." I have searched through the Act of 1923 to see if the definition of elector there has the smallest application to the elector who will be represented as the nominee of the county councils.
What is the Deputy quoting from?
If Deputy Corry had been listening he would have heard me. I am quoting from Section 4 (2) of the Prevention of Electoral Abuses Act, 1923. Is that clear enough?
An Act which the Deputy well knows. He has it at his finger tips.
According to Section 56 of the Prevention of Electoral Abuses Act the expression "Seanad election" means an election of Senators to serve in Seanad Eireann, and the expression "Seanad elector" means a person entitled to vote at a Seanad election.
But that has no application to the elector who is referred to in Section 4 (2). A Seanad elector is defined and a Dáil elector is defined in that Act, but the word "elector" as used in this section that I took at random is in a different category, and I want to know how that can be applied to the new elector who is to be selected as the nominee of the county council. I cannot find it, and it does not come within the definitions of Section 56.
It is suggested that the word "elector" is used because it previously applies to either type of elector.
Possibly. Does the Minister admit that there is a point to be considered in what I have said?
Surely.
Question put and agreed to.
Section 11 agreed to.
Question proposed: "That Section 12 stand part of the Bill."
On Section 12, will the Minister explain what is meant by "impressed stamps" in sub-section (3)?
It is to make it clear that it is an impressed stamp.
I thought it meant it was a document, but possibly I was wrong. What is the meaning of the sub-section? Is it that an impressed stamp is an impressed stamp? It has taken four lines to say that.
It says here that it shall be deemed to be a document.
Will the Minister read the first line with the new light shed on it and explain what the whole thing means? What is peculiar about an impressed stamp that it requires a whole sub-section?
It is thought necessary to bring them within the section.
Bring what within the section?
Why do you single them out? What is the difficulty about impressed stamps?
The only reason seems to be to make it a document for the purpose of the Bill.
And not an impressed stamps?
Yes.
So the Minister has gone completely round now?
The Minister is surely aware there are other stamps in existence under Government authority besides impressed stamps, and what is going to happen them?
Are stamps documents?
Impressed stamps are.
And apparently stamps are not. Is a stamp a document?
It is.
Why is it necessary to deem an impressed stamp to be a document?
Lawyers.
Is that the answer —lawyers?
Exactly.
Question put and agreed to.
Question proposed: "That Section 13 stand part of the Bill."
On Section 13, what precisely is the meaning of giving power to the Government to defer punishment? It is certainly a novel form of authority to give a Government. I can conceive of a Government being entitled to remit punishment or to give free pardons, but why they should be entitled to get a sort of cat-and-mouse power—that appears to be what it is—in respect of persons convicted by the Military Tribunal I do not know. Apparently, they can say to a person who has been convicted by that tribunal and sentenced to six years: "We shall let you out for a couple of years but, at the end of that time, you will have to serve the rest of your sentence." Is that what is intended?
This is a general relieving power under Article 2A. It has been utilised and may be utilised in the future. Since it is a relieving power, I do not see why there should be any objection to it.
I am not objecting to it. I merely want to know what is the reason for giving power to defer punishment.
The Deputy should know, because he was responsible for drafting Article 2A.
The Parliamentary Secretary is wrong in saying that I was responsible for the drafting of Article 2A. The Parliamentary Secretary, who used to be a solicitor, and who is now Parliamentary Secretary to the President should know, because of that position, if not of his own knowledge, that the Attorney-General is not the draftsman and has nothing to do with the drafting of Bills.(Interruption by Deputy Corry.) If I could hear Deputy Corry, I might have some chance of understanding him. When he is bawling, it is hard enough to understand him, but when he whispers, it is impossible. Even assuming that this is a copy of a corresponding provision in Article 2A, it is conceivable that, in the circumstances giving rise to the putting into force of the provisions of Article 2A, the Government might usefully have a power of deferring punishment, but Article 2A and the powers of the Military Tribunal automatically come to an end on the 29th of this month. Are the Government going to let some of these men who are now in jail out under the power given to defer their punishment? Are we to understand that the men in jail may be released with the warning, “Remember that at any time we take it into our heads, back you go to serve the rest of your sentence.” The Minister should realise that there is a complete difference in the operation of the section embodied in Article 2A and the operation of the power now proposed to be conferred on the Government. I want to know what is the meaning of that power.
You did not wait for the power.
The Government would like to have the power. The circumstances under which it might be exercised would be a matter for careful consideration.
What is the power? At the moment, there are a few people incarcerated under orders of the Military Tribunal. Perhaps the Minister is having a sitting of the Military Tribunal as a sort of farewell party whereat they will appoint punishment to some former friends of the Government, as a farewell gesture, before they pass out of existence under the Constitution. The Government would then have power to say: "We have caught you now. We may let you out for the next few years but, if we should happen to be Government at the end of that time, back you will go if you do not behave yourselves." I cannot conceive of any other circumstances in which this power would operate. The punishment of people already sentenced by the Military Tribunal cannot be deferred even under the power proposed to be given here. I want to know if it is intended that people will be rushed hurriedly to a farewell sitting of the Military Tribunal and that the Government want to be vested with this peculiar cat-and-mouse power in respect of these persons.
Is the Deputy getting nervous?
I have been wondering why the Deputy has been sitting here through a debate of this kind.
The power has been exercised frequently by the Government. The Deputy may never have heard of its being exercised. We do not see why the Government should not have power to exercise it in the future if it thinks fit.
There will not be any power to exercise it after the 29th, because Article 2A goes on the 29th.
I am not contesting the Deputy's contention that the power may not be there in any event, but we are making sure that we will have it here.
The Minister will have to accept my contention that the Constitution provides that Article 2A goes on the 29th. If you want to have the powers under Article 2A, or corresponding powers, you will have to reenact Article 2A or some similar measure. This provision will not operate on the re-enactment of Article 2A. It can only operate in connection with the Constitution (Special Powers) Tribunal which comes to an end on the 29th. The Government may think fit to bring in a measure giving powers corresponding to those in Article 2A, but this section will not operate on them.
Even if the present section is passed into law, the Government cannot, in fact, defer sentence?
These powers can operate only between now and the 29th in reference to anybody sentenced by the Military Tribunal. That is a matter of 17 or 18 days.
Supposing that is so, what is the objection to giving the power?
I have made quite clear that I have no objection. I merely want to know what the power is there for, and what it is intended to operate upon. I cannot find anything on which it can operate except the sentences of the Military Tribunal between now and the 29th. I want to know if the Government intend to have a farewell celebration for the Military Tribunal, to sentence a number of people for Christmas so that they may release them for celebration purposes on Constitution Day and defer the sentences under this section.
I should like to know what it is intended to do in the case of persons convicted on capital charges. Are there any persons detained under sentences imposed by this Special Tribunal on capital charges? What will be the position of any such person in future? I observe that the Government are not taking power to defer punishment in that case. What is it intended to do in the case of a person serving a sentence by the Military Tribunal on a capital charge? If such a person is serving a commuted sentence on a capital charge, is it intended that he should remain in prison for the next 40 years, if he lives so long, or is the ordinary practice to be followed? If the ordinary practice is to be followed, where is the power to release that person in view of the limited provisions in the section?
We can release at present the person the Deputy has presumably in mind. The Government have the power to do so. Whether they exercise that power or not is a matter for them. The President of the Executive Council deals with matters of general policy, and the Deputy has put down Parliamentary questions on the subject to him. I am not in a position to add anything to what the President has said.
I did not put down a Parliamentary question at any time seeking elucidation of Section 13. If the Executive Council have power to release a person sentenced to a term of imprisonment on a capital charge, have they the same power in respect of the mitigation of sentences imposed by that tribunal?
Yes.
What is the purpose then of enacting this section if they already have power in that regard?
I find it exceedingly difficult to reconcile what I was told last week with what the Minister in charge of the Bill now has just told Deputy Norton. I was distinctly told last week that this was to preserve the prerogatives of the Uachtarán, that it was he had power to remit capital punishment, that the reason this exception was made was that the Government had not power but that, under the Constitution, it was the Uachtarán who had the power. We get an entirely different answer now, so far as I can understand the answers, and I will admit the limitation. There is, I understand, one person under sentence, and here I should like to put this question: on what is this supposed to operate? There has been a man sentenced to death by this Constitution (Special Powers) Tribunal, and that sentence has been commuted to penal servitude. Therefore, the commutation has already taken place. What, then, is the point of the section? On what is it supposed to operate?
To carry on after the Constitution comes into effect.
If this were not there, you mean that you would have to execute him?
Exactly.
The position, according to the Minister, but not, I am sure, according to the lawyers, is that if this section were not there they would have to execute the man.
The intention is that the powers which the Government have at present for mitigation of sentences, and the relieving powers they have, will lapse when the new Constitution comes into effect, and the purpose of this section is to enable the Government to exercise these relieving powers in respect of prisoners after the Constitution comes into effect on 29th December.
Why are capital cases excluded?
Because the President of the State, under the Constitution, has the power of pardon.
What Article is that?
I understand that the Minister takes up the line that the President has the power. Of what? Of commuting or pardoning?
Pardoning.
Therefore, the Government has not the power, for instance, to let this man out. It is the President has it. Am I to understand that that is the position?
Surely the prerogatives of the Crown are still in existence?
Will the Minister address himself to the question put? On what is this intended to operate? There is only one man sentenced to death by the tribunal and his sentence has already been commuted. What is the purpose of continuing the power of commuting that sentence? There is nothing on which to operate it; or does the Minister expect to have a death sentence imposed by the Military Tribunal between now and 29th December? If that is so, now that that man is serving a sentence of penal servitude, is it only the Uachtarán has power to lessen his sentence, or to let him out at any particular time? Is that the contention of the Minister?
I am not clear as to the point the Minister is trying to make. It has been mentioned that one person has been sentenced to death after trial by the Military Tribunal. That sentence was subsequently commuted by the Executive Council to penal servitude for life. I take it, therefore, that a sentence of life imprisonment in such circumstances is in a category somewhat similar to a sentence of three years' imprisonment. If I am right in assuming that, I take it that, under this section, the Executive Council would have power to modify either a life sentence or a penal servitude sentence.
Yes.
If they have, with what type of case then do the capital cases referred to in this section deal? Does the section refer to the case of a man tried on a capital charge, or is it anticipated that somebody may be brought before the tribunal between now and 29th December on a capital charge? Does this section refer to a capital charge on which a man has already been arraigned, or does it refer to a possible capital charge between now and 29th December?
The President has heard the Deputy's question and he will deal with it, but I understand the capital cases referred to here are capital cases which arise after the Constitution has come into operation on 29th December.
That is right. I knew that. The Military Tribunal is to exist in the future.
How can they arise after the Constitution comes into effect?
Because, under the Constitution, the President has power of pardon in capital cases.
What Article is that?
How can anybody be tried on a capital charge by the Special Powers Tribunal, if that means the Military Tribunal, after 29th December?
The point is that, as things stand, the remaining prisoners will presumably be in jail after 29th December, and this section simply seeks to give the Government the same relieving powers which they will continue to have up to 29th December and to continue those powers after 29th December.
Will the Minister address himself, not to the powers being given to the Government, but to the powers being specifically withheld from the Government? There is an "except" in the section. It is no good saying that certain powers are conferred on the Government. The argument is about the powers that are excepted and not conferred on the Government. To get up and tell us that certain powers are conferred on the Government is not answering the point in discussion at all. The point in discussion is: why is there an exception? What are the capital charges contemplated on which this exception is to operate?
May I make a submission to the President, because I suppose this is the President's child and he probably knows something about it? What is the purpose of saying in this section that "except in capital cases the Government may remit, in whole or in part, any punishment imposed by the Constitution (Special Powers) Bill"? I understand there is one person at present serving a term of imprisonment who was tried by the Military Tribunal, sentenced to death, and which sentence was commuted to penal servitude for life. I am speaking subject to correction. I take it that a sentence of that kind is in somewhat the same category as a sentence of three, five or ten years' penal servitude, but in any event, it is not now a capital case, because it is an ordinary definable term of imprisonment for life or for five or ten years. I take it, therefore, that that is the kind of case in which the Government may, in their discretion, exercise certain clemency by way of modification or deferment of the punishment.
If that is so, what is the purpose in this section of this phrase: "Except in capital cases"? I do not think there are any other capital cases. The Minister for Education told us it was necessary to have these powers after the Constitution comes into operation. I cannot understand that reason at all. I take it that the Constitution (Special Tribunal) Act lapses and that probably the only type of capital case to be dealt with by the Military Tribunal would be a case that would arise between now and the 29th of this month. What is the precise explanation of the words "Except in capital cases"?
I had not the advantage of hearing the whole of the arguments, but it seems to me the purpose is to bring this into accord with the Constitution. The power of remission in capital cases is the prerogative of the President.
What is the Article? I was told it was Article 8. That is about the national language.
Article 13.
We were told that it was an Article which deals with the national language. That is hardly a capital charge.
When running through documents it is not easy to give the right one. Article 13 (6) says:
"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."
There are certain powers conferred on the Executive Council, and these are being carried on. This is to bring them into accord with that clause, so that the power in capital cases may still be reserved to the President, on the advice of the Executive Council.
The President has made a general statement about the power of remitting capital punishment.
Yes.
The actual section has a definite reference to one particular type of sentence, and that is a sentence imposed by the Military Tribunal.
Yes. The point is this: suppose that before the 29th December, there may be or may have been, capital cases in which the power of remission would probably belong to the President, on the advice of the Executive Council, the general intention, as I understand it, is to continue the powers which the Executive Council has at the moment for remitting punishment in certain cases. The desire is, in the case of any prisoners that might be in prison after the new Constitution has come into operation, that these powers of remission should still continue. Otherwise, there would be a difficulty, in case it was thought advisable by people interested that remission should be given. My view is that the introduction of this, except in capital cases, is for no other purpose but to bring this clause into agreement with the general principle of the Constitution which gives to the President power to deal with capital cases, on the advice of the Government. In other cases the Government is going to replace the Executive Council in this respect. Are there any capital cases? I do not know whether, in fact, there are capital cases that would continue to be referred to as "capital cases."
Would they?
That is a matter on which I would have to get legal opinion.
Surely the opinion was asked for before this section was drafted?
The opinion was asked.
What was the answer?
The Deputy knows that in regard to drafting the general intentions are understood when a Minister is giving details of a Bill. That is the usual practice. The word "capital" was put in to deal with the possibility of cases occurring between now and the 29th December. It is simply a "carry-over," to continue the powers of remission in accordance with the general principles of the Constitution.
May I put this to the President before the question of capital cases arises? What is the meaning of giving power to defer punishment? This Act cannot come into operation as an Act until after the Constitution is in force. Therefore, at that time the Military Tribunal will have ceased legally to exist. I want to know how you can defer punishment given by a tribunal that has ceased.
It seems that cases have been tried but that punishment has been deferred.
Deferred?
Cases have been tried and punishment deferred, generally, I think, from the point of view of watching as to good conduct, to see if conduct was such that the punishment could be annulled altogether. This is continuing power of the same kind, power which is useful in the public interest.
I am afraid the President is not right in that. It is a very plausible explanation, but it is not a correct one.
That is the explanation which appears to me. This is a highly technical legal Bill on which one would have to get legal advice. Unfortunately, the Minister who was in charge of the Bill is ill.
It was introduced by yourself.
Yes, but it was the Minister for Justice who was really in charge of this Bill.
Article 36 of the Constitution provided that the right of pardon and the right to commute punishment inflicted by any courts exercising criminal jurisdiction was vested in the President. It refers to a court which, during the period of office of the President, is exercising criminal jurisdiction. In this particular case the tribunal will in fact not exist under the Constitution. It will have ceased on the 29th December if this Constitution comes into operation. We will have a President elected, let us say, six months hence, and he may then be confronted with a situation whereby a person is in custody, on a charge in respect of which he was convicted by a court not then existing. Has the President power in that case to commute the sentence?
I do not expect the case the Deputy is trying to imagine could arise. This is a "carrying-over" Bill to try to meet the existing situation, and to carry over parts essential for the future. The reason this clause is there, and is worded in this way, is to keep it in consonance with what will be done, and to give power to, the person who will have to act in capital cases. Supposing that there was a capital offence and that judgment was passed between this and the 29th December, when the 29th came along that ended the decision. If there was not "carrying-over" power such as this, there would be no power in anyone to remit the punishment inflicted. This is simply a safeguard, and is in consonance with the general spirit of the Constitution, which says that in capital cases it is reserved for the President, on the advice of the Executive Council, of course, to pardon.
There are three points raised here. One is to this exception about capital cases; the second, as to deferring punishment; and the third, to the general scope of Section 13. Taking the second one first, the President's explanation about deferring punishment is that the Government has already power to defer punishment, already deferred If it is not that, it has no meaning. As Deputy Costello pointed out, this Bill will not operate until after the 29th December, and by then we are told the body which imposed the punishment will have gone out of existence. It must operate punishments awarded prior to the 29th December, and the President says not merely convictions but those deferred. Why was there necessity to put in a special clause? Does not the Executive Council of Eire take the place of Saorstát Eireann? We have a variety of clauses described as "carrying on," and the whole purpose is to put the Executive Council of Ireland— with a note of interrogation after Ireland—into the same position as Saorstát Eireann. If the Executive Council of Saorstát Eireann have this power, the Executive Council of Eire will have the same power in previous clauses hereafter. Why pick this out?
The Department of Justice apparently consider that this safeguard should be inserted.
The President's colleague told us early in the evening that the Department demanded the bringing in of this, and when he was asked for the reasons that made the Minister accept the demand, he was not able to give one. The President is now drifting into the mood that his colleague has been in for the last hour and a half. It slumps down to this, that officials told him and he did not bother to question the officials whether their viewpoint was correct or not, or to get an example from them that he could put before the House. The Minister simply came here and told us that the officials demanded the bringing in of this, but we could not get any reason from him. It is no explanation for the President to come here now and say that the Department of Justice think it necessary to insert what he calls a safeguard. I presume that, when the Department did that, the President, or some of his colleagues, asked for the reason, and my submission is that this House ought to get the reasons and not simply the answer "the officials demand it." Bureaucrats always want all sorts of things. Surely we have not yet got to the point that the House is going to be asked to say: "The Department want this and we ought to pass it," and in that way resign ourselves into the control of a Department. If this is necessary, then let us pass it with some better argument than merely to be told that the Department want it.
The next point is with regard to capital cases. Is there any change being made? I gather not. The situation, as I understand it, is that the Executive Council had control in this matter under Article 2A. By this Bill the new Executive Council, with the Taoiseach and the Tanaiste at the head of it, is going to have the same powers as the present Executive Council. What, therefore, is the need for all this? The Executive Council has those powers by law. The President's colleague told us on an earlier section that the whole scheme of this was to ensure that there would be no dislocation; that there would be smoothness in the running over from one period to the next.
I do not know what the point about the capital cases is. We are told that there is a constitutional provision that the remission in capital cases cannot be conferred upon anybody except the President. If that is so, then the Constitution would rule it simply. The last point is with regard to the scope of the section. Before the President came in, his colleague, briefed, I suppose, by the Department responsible for the Bill, told us that this was intended to operate in the future. When I questioned the whole thing coming to an end on the 29th of this month the Minister was quite precise about that.
I referred to the relieving power. The Deputy is trying to give the House the impression that I said—I may unwittingly have given the impression—that the Constitution (Special Powers) Tribunal would continue in operation. What I meant to say, and what I believe I did say, was that the relieving powers which the Executive Council have at present would continue after the 29th December, and that that was the object of this section.
It was idle to have such an aim as that, because that aim was already achieved if, by nothing else, then by a preceding section which puts the new Executive Council into the same position as the Executive Council that preceded it. The other point, I believe, is the correct one, that the phrase has no limitation with regard to time. That phrase, if it comes hereafter to be construed, will certainly mean that any punishment imposed from time to time will be imposed by the new Special Powers Tribunal.
Nonsense! because this is obviously a Bill of another character.
What other character?
I will speak when the Deputy has finished.
This is a Bill "to make divers provisions consequential on or incidental to the coming into operation of the Constitution." One of the Articles of the Constitution is Article 38, which says that "special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate." It is contemplated, therefore, in the Constitution that courts corresponding to the Constitution (Special Powers) Tribunal will be set up. Suppose one is set up next year, and that it bears the name of the Constitution (Special Powers) Tribunal, surely this clause meets the case.
It does not, because it would clearly be interpreted in connection with the particular Act named.
Suppose there is a new body to be called the Special Powers Tribunal, does the President say that this could not apply to it?
I do.
Suppose there is a new body not called the Special Powers Tribunal, the Taoiseach has power by himself under sub-section (2) of Section 4 of this Bill to determine that the new body is equivalent to the new Special Powers Tribunal and his decision is final. That sub-section has a definitely ominous meaning, because if any question arises as to the new body the Taoiseach determines it. It is possible, therefore, under the new Constitution for a new body to be set up and called the Military Tribunal. The Taoiseach can, by his determination which is final, say that that body represents the Constitution (Special Powers) Tribunal, and thereafter we have the relieving effect of this section carried forward. The Minister tried to retrace his steps. He did say that that clause looked to the future. He did not make any limitation with regard to the other relieving powers. He was first of all thinking of the court which would be established.
I was not thinking of it.
Undoubtedly the Minister was.
The Deputy may be very clever, but clever as he is he cannot read my thoughts.
They were not disclosed to-night, so that I could hardly read any. The Minister put himself on record as saying that this looked to the future.
Exactly.
And that the clause was carried into the future. The Minister now seeks to limit that by saying that it has only a relieving effect. I do not think that is a suitable explanation.
The Deputy ought to know that Article 2A goes out of existence with the disappearance of the old Constitution. Therefore the Executive Council will have no powers that are not given to it by some Act of Parliament. If the Constitutional provision which gives those powers to the Executive Council disappears, then the Executive Council have got none, and the Deputy knows it.
I can give the President a reference to the contrary— the Interpretation Act.
The Deputy knows perfectly well that the Executive Council will have no powers when the foundation of their powers disappears. With regard to this Bill, I am sorry that the Minister for Justice, who had charge of it, is unable, through illness, to attend in the House. It is a Bill of a technical and legal character, and the Minister in charge has to make up the details to meet all the points likely to be raised. Again I say that when the present Constitution disappears, Article 2A, which gives the Executive Council the powers they have at present, also disappears. Therefore the Executive Council have no powers that could be continued over, so that this is necessary.
That answer is unsatisfactory, first of all, because under the Interpretation Act of 1923 a peculiar position was created. When a Bill is repealed, there is a gap that is still left, and I suggest that the President has been misinformed if he suggests that his answer is the correct one. I suggest that he has not got that answer, and that this interpretation of his can be disregarded for that reason. The second point is that under Article 2A there is a general prerogative of mercy, and general prerogatives of mercy are carried forward by the Constitution. Therefore there is no necessity for this.
Well, the opinion I have given the Deputy is the legal opinion I have been given, and, in a case of that sort, I am going to depend on the advice of those who have the responsibility for giving a real legal opinion, and not on the advice of those who have not any responsibility and who are only concerned with what political points they can make out of the matter. The reasons that I have given to the House for this are the reasons that have been given to me by people competent to advise, and I think that these reasons are good reasons. If anybody else thinks differently, then the matter can be decided in a different way.
I am sorry to hear that the Minister for Justice is ill, but I was in the House yesterday, or at least on the day when the President mentioned four Bills—or perhaps it was the Minister for Local Government—but I doubt if this was one of the four Bills mentioned on that occasion.
No.
Well, if a Minister brings a Bill before the House—and the President may realise this yet—he ought at least to try to convince the House about what the Bill relates to, and not say, in effect: "Well, I asked the boys, and they said it was all right." In bringing the Seanad Bill through the House, one of the chief arguments used was that this Bill would clarify certain sections of the Seanad Bill, but our experience of the last few weeks makes that a rather difficult pill to swallow.
The position with regard to the Seanad Bill was very different from that of this Bill. In the case of the Seanad Bill, there were three or four alternative schemes in regard to the Seanad, and there was no use in trying to work out all the details corresponding to the various schemes proposed. Accordingly, the Seanad Bill was entirely different in character from this Bill. This is a Bill which was very carefully considered, and it is well known what is the usual practice in regard to such Bills. I am talking now to people who know perfectly well what is the usual procedure in regard to such Bills. If some of the criticism that has been levelled in this connection came from people who did not know how this sort of work is done it would be quite a different matter, but the Deputies opposite know perfectly well what is the usual procedure—what is necessary in order to get Government business done, and how it is necessary, once the general principles of a Bill have been established, sent to the draftsmen, considered by the draftsmen and returned, that the final carrying of the Bill through the House and the explanation of the Bill to the House is entrusted to one Minister so as to prevent unnecessary details being brought into discussion. What happened in this case is that, unfortunately, the Minister concerned got ill at the last moment and another Minister had to substitute for him. I have not myself been in charge of the Bill, but it seems to me to be quite obvious that, when you know what happens in regard to deferred sentences and so on, you can see the interpretation at once that should be put on this, and I say that the answer I have given to Deputy McGilligan is correct, and that is that the Executive Council, once Article 2A of the Constitution is removed, will have no powers except such as are given by Act of Parliament. Therefore the question of continuing powers is not affected.
A legal opinion is only worth the argument by which it is sustained.
I agree.
The President's legal opinions have not been sustained by argument.
They have been sustained in the sense that I have given to the House.
And the sense is that we ought to know what these Departmental officials know about it.
That is not so. I have given the reasons.
The only reason that I can see is that, after the Minister for Education had given one interpretation, a completely different interpretation is given on this matter.
That is not so.
The President's anger on this matter is quite clearly understandable, because he does not want to admit that this Constitution allows certain courts, such as we are discussing, to be set up.
No, that is not so.
The President need not be hectoring the House in this manner. He must admit that this makes allowance for the continuance of these tribunals.
It does not.
It does.
I am afraid the Deputy's opinion would not be worth very much.
I have never asked that my opinion should be accepted by the President, because I do not think he is too good a judge of anything. As far as I can make out, the President goes by whatever a lot of "yes" men, sitting like sparrows on a telegraph pole, say to him.
We are not a collection of jaw-bones, anyway.
Well, I am not sure that, if your jaw-bones were exercised more against certain matters, they might have a certain value. However, what we are told in connection with this is that it is necessary because, once Article 2A is gone, the power of the Executive Council with regard to pardon is gone. I say that it is not. First of all I ask the President to look at the Interpretation Act and, after that, to look at the clause that he himself put in the Constitution carrying forward the prerogative with regard to mercy—whether retained in law or not—and to find out what happened in regard to that.
I hope when your turn comes there will be no prerogative.
The Chair will not again call Deputy Corry to order in to-day's session.
The President makes the pretence that the object of this is to fit into the constitutional scheme. I put it to the President again that, in connection with the question of these prerogatives being overridden, there was no necessity to bring in this particular phrase unless you consider one thing, and one thing only: and that is, the possibility of these special tribunals being brought into being hereafter; and evidently the President thought it well to safeguard the position, because although it might be considered that the tribunals were not carried forward, still it was necessary to have some provision whereby they could be set up. I think it is as plain as daylight.
It is as plain as daylight that what the Deputy is saying has no reference to this Bill.
It is as plain as daylight that between what the Minister for Education said and what the President says there is nothing to clarify the matter. The Minister said that it would carry on into the future.
I explained——
Possibly, the phrase came out because Ministers had been giving the matter consideration.
I deny that.
At any rate, it was one of the few points about which the Minister was clear. About everything else, he was in a fog. Does not everybody know that if there were going to be an attempt, even a tricky attempt, to carry such things through, it would be a matter for discussion by the Executive Council and ought to be impressed on the Minister's mind, and not——
Very clever!
It may be very clever. Of course, the President's Government is so much of a one-man business that he would not even discuss such a matter with his colleagues and advisers! He knows that he would. If he would discuss these other comparatively harmless and minor matters, surely he would discuss the more important ones; and is it not amazing that a Minister, who made such a woeful exhibition of himself with regard to other clauses of this Bill, should suddenly have become aroused to the extent of having some definite idea with regard to this particular clause. The one thing that starts out from the whole thing is that this clause was considered as an Executive Council matter and the rest were not. The only reason it was considered is because it is an important matter to make some provision for the future re-establishment of these special tribunals.
The Deputy is extremely clever and very unconvincing. If he looks at the clause he will see that this is the power of remission. If we are even to take the Deputy's view that it was carried over, is it not clearly only the power of remission and the prerogative of mercy? What do we want it for? For the reasons we have given. That is all that can be alleged, even under his own suggestion, which is, of course, absurd on the face of it. The Deputy need not be afraid, if he thinks it is going to be of any political value, to say that special courts may be necessary. They may be necessary. If they are necessary, this Government, in carrying out its duty, will come to Parliament to set them up. Do not think that we are running away from the possibility of anything of that sort. If it is necessary, it will be done, and then the Deputy can talk as much as he likes about it. I say in answer to the Deputy that if he thinks there is any political advantage in talking in that manner, I will give him all he wants of it, and he can take all the advantage he wishes out of the statement which I make here deliberately—that if public order here demands that there should be, under the new Constitution, special courts set up, it will be done; and if this Executive Council is in office, it will face its responsibility and bring in a measure to deal with it. Is the Deputy satisfied?
I am waiting for the cheers from the background.
So far as this is concerned, it is carrying over the powers of deferment of sentences, of commutation and relief of sentences, which is already given by Article 2A but which will disappear when Article 2A disappears, because the foundation of the power of commutation and remission of sentence, which the Executive Council has at present in regard to prisoners convicted by the tribunal, is given to them by Article 2A. We want to see, if there are any prisoners in prison at the time the new Constitution comes in and the old one goes out, that the powers of remission are continued over.
The Deputy says that is not an answer. I say that people, in whose opinion I have much more faith than I have in any legal opinion which he would give, consider that it is advisable and necessary. Even if it were not necessary, what harm can be done by giving these extra powers so as to make, if you like, assurance doubly sure? It is ridiculous to say that these are powers in relation to some future tribunal which is supposed to be set up.
There is one phrase in this section: "The Government may, in their absolute discretion, at any time remit in whole or in part or modify (by way of mitigation only) or defer (conditionally or unconditionally) any punishment imposed by the Constitution (Special Powers) Tribunal." I take it that any person who is now in custody, under sentence imposed by the Military Tribunal, is actually undergoing sentence, and that that provision about deferment cannot refer to a person who is actually undergoing sentence at present. We have to deal with remission or modification there. Is not that so?
I do not know whether you can defer portion of a sentence. It is the same thing as remission.
Let us leave out deferment. There are certain categories of powers which the Executive Council may exercise under that section. They may remit in whole or in part, or modify by way of mitigation only. I take it, therefore, that where a person is serving a term of imprisonment, the only function they can really exercise in that respect would be remission in whole or in part. Then that is clearly not dealing with a case where you want to defer punishment. Deferment is a different thing. The only circumstance in which deferment might arise is in the case of any person who is brought before the tribunal between now and the 29th of this month.
There are some deferred cases already—deferred cases, for instance, for a period, some under conditions and some not under conditions.
What type of cases are these?
Cases where there has been deferment.
Of the sentence imposed.
Yes, the punishment being deferred.
A suspended sentence.
Yes.
Let us deal with that side of it. Persons have been before the tribunal and sentences have been imposed. I take it that in certain cases these sentences have been deferred subject, presumably, to something happening in the meantime on the part of the person sentenced.
Usually good conduct or something like that.
Under the existing Constitution (Amendment) Act there is power to exercise that deferment, so that that Act really gives you the power of deferment while the Military Tribunal lasts. Is not that so?
I would not say that.
There is power for deferment under the Act?
Yes.
There is that power of deferment up to the 29th December when the tribunal ceases to function?
Yes.
What is the purpose, therefore, of carrying over the power to defer? Presumably, a person, if he is not called upon before the 29th of this month to serve his sentence, will not certainly be afterwards asked to serve it.
What about the prisoners in jail at present? May not their sentences be deferred?
Although they are in jail?
I asked the President, where a person is at present undergoing sentence and it is desired to release him, what power the Executive Council exercise, and the President answered "the power of remission." The power of remission is the only power which can be exercised then.
I think he expressed doubt.
I think the President was clear on the matter. Now the Minister for Education asks: "What about the people who are at present serving"? The President, who knows more about the Bill, says they will have to deal with these people by way of remission of sentence. The difference between the President, who says: "You must deal with them by way of remission," and the Minister for Education, who says: "You must deal with them by way of deferment——"
I did not say any such thing.
The Minister implied that he meant deferment as applied to existing prisoners.
I have been trying to explain to the Deputy, as the President has just explained to him, that the Executive Council have exercised the power of deferment in the past. I can see no reason why they should not exercise that in the future, if they think fit.
What future?
After the 29th of this month in respect of the existing prisoners.
It is an explanation of that kind that causes all the difficulty.
Why?
I will do my best to explain. This section enables the Government to exercise certain functions.
This section is taken straight out of the Constitution (Amendment) (2A) Act. The relieving powers are taken out of it and are being carried on.
The section says: "The Government may in their absolute discretion at any time remit in whole or in part or modify (by way of mitigation only) or defer, conditionally or unconditionally, any punishment imposed by the Constitution (Special Powers) Tribunal." We are dealing with persons undergoing sentence by the tribunal. They are in custody at If it is desired to release any of these, I take it that the Government must exercise the power of remission. It is not a case of deferment, because you cannot defer a sentence already being served. What must operate in that case is the power of remission.
You can defer the portion of the sentence which has not been served.
If the Minister will read the section he will see clearly that the function to be exercised in these circumstances is the remission. You say that you remit either in whole or in part. You cannot remit the whole sentence; you can remit only the unserved portion of it. Clearly, this provision to defer conditionally or unconditionally any punishment is entirely a different type of power. There is, at present, under the Constitution (Amendment) Act, power to defer any punishment which may be imposed by the Tribunal. Seeing that we have that power and can exercise it, up to the 29th of this month, when the Constitution (Special Powers) Tribunal disappears, what is the purpose of carrying this power into this Bill unless it is thought that that power can be exercised here after the 29th December? Why are we carrying over that power seeing that we can only exercise it up to the 29th December? Surely we do not need it after the 29th December unless we were thinking of having a deferred sentence, and that we might revoke the deferment and reimpose the sentence?
First of all, some point has been made about the Minister saying that you defer. From a layman's point of view in this matter, we might say you defer or you remit; as long as the remission is achieved it does not matter very much. Technically, both can be used so that when the Minister speaks about deferring portion of a sentence remitted he strictly would not be inaccurate. That may prevent misunderstanding. The next question is: what is deferment? The power of deferring has often been exercised in this particular way. We defer sentence for a certain period on the understanding that it will come up to be reviewed at a certain time. In other words, you say that if you get satisfactory reports as to the conduct of the person whose sentence has been deferred, the sentence may be remitted completely. If, however, the report is not completely satisfactory you may say: "Very well; it is in the public interest that this particular person should have a further period of probation in which we shall see what his conduct will be like and we can get a further report upon him." There you defer the matter for review at a certain period. That is a power undoubtedly that under this section will be continued.
Let us say that the sentence was to be reviewed on the 1st January and that on the 1st January you found that the conduct, generally, of the person involved had been of such a character that, if this transition had not taken place, the Government would not have been prepared completely to remit the sentence. In that case we might say: "We have reviewed this and we consider it proper to put it back for a further review at the end of March." That power is given in the Bill and that is the sense in which deferment is used. The power to defer is being used in that connection to give a period during which reports would be got as to the conduct of the individual concerned so that these reports could be considered when the matter would come up for review. It is deferred for review. If on that date it was found that his conduct had been satisfactory, and that it would be consistent with the general public interest that the sentence should be remitted completely, then it would be remitted. If, on the other hand, it was considered that the public interest demanded that a further period should be given and that the matter should be reviewed again after the lapse of some months, then it would be deferred for that period.
Is there any deferment in a case where a person actually served some portion of his punishment?
I understand there has not been.
The position as I understood it was this: There are two powers that were very distinctly stated for those who want consideration of this section. Deputy Norton has definitely stated one case. There is a power of remission where a man had been sentenced and where he began to serve his sentence. The rest of the sentence is remitted. That is one power. He contrasted with that, very clearly, the power of deferring punishment. That has been explained by the President. Whilst Deputy Norton was discussing the matter, on two occasions the Minister for Education said: "What about the prisoners who are now in prison?" In reference to the power of deferment that can only mean one thing. I want to know does it mean this, and the President has not yet stated that it does. Say a person was sentenced to 18 months and served six months. The only interpretation that can be put on the Minister's interruption is this, and it can bear no other explanation, because Deputy Norton stated the alternatives clearly: "He has served six months; we are now letting him out and deferring the other 12 months." Is that possible?
I am informed that it has been possible.
Is it desired to keep that power?
It is desired to keep that power with any with other power of deferment. In so far as the power of deferment in the other sense is kept on, the power of deferment in that sense is kept on.
And it is desired to keep it on?
Yes.
Now that we have finished with sub-section (1), I desire to call the attention of the President to a matter arising out of sub-section (2). This sub-section states that whenever a free pardon has been granted by the President to a person convicted by the Constitution (Special Powers) Tribunal, the forfeiture or disqualification occasioned by such conviction shall, as from the date of such pardon, be annulled. I presume that one of the disqualifications there would be, for instance, the right to receive an Army pension. Any doubts I had on that matter were removed when the scheme was going through this House quite recently. It was stated that anybody who was convicted by a court of competent jurisdiction and received a sentence of six months would automatically lose his pension. I asked the Minister for Defence would he include in that category convictions by the Military Tribunal, and he said "yes." He said that the tribunal would be considered a court of competent jurisdiction. Now, under this Bill, when a man so sentenced is pardoned, it automatically follows that he gets back his pension. He may be sentenced to death and his sentence is commuted. He serves ten years, the President pardons him, and then he gets his pension back. Then take the case of a man caught with a gun, for instance, who gets 12 months' imprisonment. He serves that 12 months, does his time, but he cannot get the pension back.
A Deputy
He will get the gun back.
Does the President say that is so?
He serves 12 months for a minor offence and he does not get his pension back, whereas a man who has, perhaps, committed murder does get his pension—in fact, must get it. It is mandatory. I suggest that is the interpretation of the sub-section.
The Deputy is arguing something that is not here. The fact that a free pardon will carry certain things does not mean that something contrary to this would be done in other cases. It would be quite possible to deal with that case in an independent manner. The clause set out here makes it quite clear that a free pardon, when it is given, means wiping out the offence as if it had not existed, and in so far as any disqualification or forfeiture is concerned, when the President gives a free pardon, as from the date on which it is given the disqualification and the forfeiture disappear.
Now, to say that because you do that in that particular case you are implying that something else will happen in some other case, I do not think is accurate at all. It does not flow from this. If what the Deputy says is true, it may be a question of saying: "That is a peculiar situation in law", but that does not arise as far as this section is concerned. This section is of narrow import. It simply gives legal and statutory assurance to this fact, that a free pardon when it is given is to mean that all those things are wiped out.
The President's use of what I may call the parable of the eleventh hour will hardly fit here, namely, because he is giving a big concession in one case no obligation is there to give it in smaller cases. There is such a thing as even-handed justice which the Government is bound to mete out. Deputy McGilligan's point is that if you are giving this big concession in this particular case you certainly ought to give it in minor cases. There is a moral obligation on you to do so.
Oh, no.
I am just explaining what I think was the point which was made.
I understand the point.
I think that is the point.
I understand it perfectly. But the point is what does the Deputy want?
I want you to undertake to do the same in regard to minor sentences.
In other words, the Deputy wants to insert it in this?
No—not here. I said "undertake to do it". The President admits there should be even-handed justice?
Quite.
It is not even-handed justice that a person guilty of a major offence will, because it is a major offence, probably get a pardon, whereas the person guilty of a minor offence who gets a minor sentence will probably serve it out and not get a pardon. For that reason he is put in a disadvantageous position as compared with the other person, and that is not even-handed justice.
The Deputy has gone to the moon away from all this. I appreciate the point about even-handed justice, but that has no immediate relation to this, unless he wishes that we should insert something in this Bill in regard to the other case. If that is the contention, I understand it. What is the position? A free pardon —as I have understood it at any rate, whether I am right or wrong—has been as if the offence had not been committed; a complete wiping clean of the slate. Where are free pardons given? A free pardon will not be given to everybody. A free pardon is given when there are some special reasons for it, and that free pardon, in so far as the wiping out of those particular consequences is concerned, can be given, I understand, to a person who has served his sentence.
This is important from the Deputy's point of view. A free pardon may be given to a person who has served his sentence. If it is considered by the Executive Council that a case for a free pardon arises, whether the sentence has been served or whether it has not, that free pardon can be given. When it is given, all this ensures is that that is a method by which you wipe out all the consequences. In so far as they cannot make it retrospective—if a man has suffered certain punishment in the past, you cannot make it retrospective—that wipes it out. I hope the Deputy understands.
At the same time I consider it is doing it unjustly; that the justice is not even-handed. Either this should be deleted altogether or the President should bring in something else to try to balance the scale.
Here is what generally happens: A person has been convieted by the tribunal of an offence of a certain type. He may have been punished, or perhaps before the punishment a petition comes to the Executive Council that for such and such reasons a free pardon should be granted. The Executive Council may say: "Very well. We are prepared to consider that favourably if we get some assurance that the same sort of offence which resulted in this particular punishment being inflicted will not occur again." In such a case the Executive Council has always tried to take as lenient a view as possible under the circumstances. There is this petition. It may be after the sentence has been served. It is considered on its merits. If the Executive Council is satisfied that they are exercising their functions for the interests of the community as a whole by giving a free pardon, then they can give it. All that is here is that if it is given it will carry the consequence of complete wiping out, so that it is really even-handed if the Deputy regards it in that sense.
The President, I think, understands, that even if a free pardon is granted ordinarily, it does not wipe out the conviction. The person will still be under a disability.
I think a free pardon always took that with it. This is, if you like, making assurance doubly sure.
The President is discussing free pardon in different terms. What does a free pardon mean? Is it a remission of sentence in the whole?
It is as if the offence had not been committed. It is wiping the slate clean.
If a person gets the whole of a sentence remitted, is that a free pardon?
Not necessarily.
Not necessarily. They are different things. Surely there is a big distinction. When was a free pardon ordinarily granted?
I am not going to go into the question.
I suggest that a free pardon always is granted when there is considered to have been a miscarriage of justice, and not otherwise.
That is not always so.
If it is supposed to be in some other terms, and the President certainly discussed it as if it were, then there is an enlargement of the general use of the phrase "free pardon." As long as we know that there is an enlargement of the phrase, we can get some idea of the more extensive territory it is going to cover. The more it does cover away from a miscarriage of justice case, the more point there is in Deputy McGowan's objection. He makes the objection that a man is brought before the tribunal, is considered to have committed some minor offence, and is sentenced to a year's imprisonment; he serves the year and his disqualification continues. He does something else which gets him a sentence for life. After he has done five years, there is what the President now describes as a free pardon. He then gets his whole rights restored to him.
And given under Article 2A, as the Deputy knows.
I am talking about free pardon. Does the phrase "free pardon" come into Article 2A?
I am sure it does.
I want an assurance that it does. "Free pardon" as used in ordinary law has no reference to a remission of sentence. In fact, it is what it says; it is a pardon so as to put a man back into his civic rights because it is believed that the sentence never should have been imposed on him. That is what it generally means. I am going back to Section I, notwithstanding what Deputy McGowan says. We are told this is continuing relieving powers, and we have had examination of what the relieving powers come to. One thing emerged. A man is brought before the tribunal and given two years, not to be imposed if he is of good behaviour. Deputy Norton gave the example, and the President accepted it, that you may call that man up next January and say: "We are not satisfied that you are of good behaviour; we will have another look at you next March." He comes up next March and you say to him: "You will go to jail for two years now." I do not call that a relieving power.
It might be a justice power.
Of course it might. I am glad to hear somebody on the Back Benches approving of justice from the President. There was the dullest and deadliest silence over there when the President tried to enthuse his followers about this tribunal.
We are the jury.
We understand the President. You do not.
Quite right!
Special courts may be established. The President has told us they are going to be established if required, and there is not a spark of enthusiasm for them on the Back Benches.
In the event of a man being detained on a capital charge, in what way can the President exercise his prerogative of mercy? How can he get out?
He is given the power here, on the advice of the Executive Council.
Which Article contains that?
The Government may do it in their absolute discretion.
But capital offences are exempted from that; it exempts capital offences. I am suggesting that the only way would be a free pardon by exercising sub-section (2).
There is the right of free pardon here in Article 13 (6): "The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities." You have here the conferring by law on another authority.
In the event of a person being sentenced to penal servitude and after the completion of five or seven years it is found that that person is completely innocent, he will get a free pardon and possibly that will satisfy him. But in other places they grant a sum of money to that type of person by way of compensation. Does this Bill include that, or have you a fund in another place for that purpose?
That is a case of clear miscarriage of justice and you will have to consider it in its own setting.
I am not at all clear that a free pardon in the ordinary meaning removes the conviction. The stain of the conviction is still there.
It does. Free pardon is mentioned in a certain context in a certain sense.
I hope the Deputy does not anticipate anything.
Question put and agreed to.
Section 14 and the Title agreed to. Bill reported with one amendment.
I should like to take the Report Stage now. It is rather urgent that this measure should become law. I think the points that have been raised by the Opposition have been examined fairly carefully. There were only two important points and they were related to the Prevention of Electoral Abuses Act. We are satisfied that they are covered. Our advisers have informed me that they have gone into that matter and they are quite satisfied that position is fully met. Therefore, there would be no advantage in postponing further discussion of the measure and I would ask the House to facilitate us by giving us the remaining Stages.
This is an amazing request. During the course of this Bill, when the Minister was mainly in a fog, he said he would look into at least three matters. He now tells us that the only point of importance was in connection with electoral abuses. He says that his advisers are satisfied. If he could convey that satisfaction to us and the reasons for it, we might allow him to get this measure through; but it is surely treating the House with contempt to come here and say, after a conversation across the gangway, that his advisers are satisfied that something has been met?
Does not Deputy McGilligan know by this that when the Minister says he will consider a point, that is the last we will hear of it? It has become merely a polite method of telling the House that Ministers do not care what the House thinks. Frequently, when we raise important points here we are told: "This matter will be considered and, by the next stage, we will have an opportunity of getting the matter explained or else an amendment will be introduced to meet the situation." When the next stage is reached there is no opportunity afforded of discussing the point because no amendment has been introduced by the Government and, therefore, it cannot be raised any further. It has become a practice with the Government when they are up against any difficulty in this House to say: "We will consider that point and by the next stage we will be able to clarify the position in regard to this particular matter." That is merely the common practice. It is the Government's method of deceiving the House. Indeed, it has become almost a sacrosanct procedure.
I suggest that it has become the practice simply because the Opposition have not gone to the trouble of putting down amendments to meet their own point of view. As a rule, when there is a Second Stage there is ample time given between that and the next stage for putting down amendments. I am not applying that to recent measures, because I admit that in the case of this Seanad Electoral (Panel Members) Bill we have been rushing things a bit because of the pressure of time. But, ordinarily, when a Minister says: "I will consider that and possibly put down an amendment," the moment the amendment sheet appears and Deputies opposite see their point is not covered, then it is up to them to go to the trouble of trying to put down an amendment to meet their point of view and get the sense of the House upon it.
Very often it happens—it has happened in my own case quite often— that a point is made from the opposite benches and it appears at first sight to have some substance to it, but when related to other parts of the Bill it will become evident that the point has been met, or there is a reference in some other paragraph which covers the whole thing. In those circumstances it is not necessary to put down an amendment. When you have a long, complicated Bill it is very easy, when you are attending to one section, to lose sight of the effect or the force of another section. You require to sit down carefully and consider the Bill. Certain things may be lost sight of when we are on our feet meeting a point raised for the first time. If Deputies want a point properly debated, the way to do that is to put down an amendment so that Ministers will have an opportunity of considering it calmly and quietly and getting any advice, if there is a legal point raised, on the particular merits of it. Lawyers differ as doctors differ, and very often the construction of a particular paragraph or section of a Bill may give rise to a difference of view. You may have a difference of opinion, and even amongst your advisers you may have a difference of view, and, finally, the person in charge has to make up his mind what he is going to do in the circumstances.
My attitude is that wherever there is a doubt I try to make assurance doubly sure, even if I were told that already the point was sufficiently sound. When Deputies raise points and we say we will consider them, they are actually considered. The judgment may be that the point has been met in some other section, or that the point is not sound. Deputies ought not to take it that there is not proper attention paid to their points because Ministers do not come along with an amendment, for the reason that we are convinced and amendment is not necessary.
I was dealing with my experience of the last couple of weeks. It is absurd, for instance, in the particular case the President refers to, to expect that we could put down amendments. How could we be expected to put down amendments when we only got the President's amendments to-day? Further, I explained to-day quite seriously that I thought it would be detrimental to a bad Bill if we made any suggestions.
May I take it the objection is not pressed?
The proposal is that this Bill should get the Fourth Stage now. The President has given us a lecture on the duty of the Opposition to put down amendments and, in order to allow us to put down amendments, we are asked to take the Fourth Stage now. It all seems very logical.
One reason why we might give the President this Bill is that we will not have a repetition of the Ministerial conduct that we had here for the last three or four hours.
The question is: "That the Bill, as amended, be received for final consideration."
I am going to object unless every stage is taken now, because there are some flaws in the Bill.
The Deputy has threatened us in that respect many a time.
You found them out afterwards.
The threats never materialised. We were threatened about the Bill dealing with the abolition of the Seanad even by an ex-Attorney-General, but the threats did not amount to a row of pins.
They amounted to a whole heap. You had to bring in amending legislation. Is it proposed to take all the stages now?
Yes.
Bill received for final consideration, and passed.