I move:—
That the Dáil is of opinion that the Government should immediately establish machinery whereby conditions of employment in the Civil Service and other matters which may from time to time be in dispute between the Government and the Civil Service would be settled by agreement between representatives of the Government and of the Civil Service associations, and, in default of such agreement, would be submitted for decision to an independent arbitration board, the awards of which, subject to the overriding authority of the Oireachtas, the Government would undertake to implement.
The subject matter of this motion was before the House on several occasions. It would, perhaps, be inaccurate to say that the matter was debated. Very largely, the discussions took place on speeches made by members of the Labour Party and by members of the Party to which I belong. We had, I think, on no occasion any reasoned case made on behalf of the Government against the claims that have been put forward now for some years, on behalf of the Civil Service, for the establishment of an effective scheme of arbitration and conciliation for the determination of disputes or grievances which exist in the Civil Service.
Over 12 months ago, Deputy Norton had down a motion calling upon the Government to receive representatives of civil servants, or of their organisations, with a view to seeing if agreement could be reached between the parties as to the setting up of this machinery for arbitration. That motion was on the Order Paper for a long time. It was opened by Deputy Norton, who gave an exposé of the position and of the arguments at considerable length, and with great cogency. I followed. The Minister did not, from that time, give any indication of the then Government's proposals, or what they intended to do with the matter, and the general election took place.
At the outset of the remarks that I made on Deputy Norton's motion, I stated that it was my desire that this motion should be debated in the House in a strictly non-political atmosphere. I drew the attention of the House at that time to the fact that the then Government had, what they were fond of referring to as, a mandate from the people to set up arbitration machinery for the effective disposal of disputes between the Government and the Civil Service; that they had made certain promises at election time, and subsequent to election time, to the Civil Service; that the chief Opposition Party had committed themselves publicly in the Dáil and outside to the principle of effective machinery for arbitration with the Civil Service, and that, so far as I know, no protest had come from any Independent Deputies against the proposal. During the course of the discussion that ensued on Deputy Norton's motion, no Independent member expressed any dissent from the motion.
The position, therefore, ought to have been, as I saw it at that time, that the proposal in reference to Civil Service arbitration machinery could have been, and ought to have been, approached and discussed on the merits of the case, and that really we had for once a topic on which all Parties could agree. After the general election took place, as soon as it was possible, Deputy Doyle and I put down this motion. It was amongst the first motions put upon the Order Paper, and that was done with the object of indicating and carrying out the policy that I indicated when Deputy Norton's motion was before the House, namely, that this matter ought to be, and could be, dealt with on its merits without any question of Party bias, Party affiliations or Party commitments. We wanted, when that motion was put down, that it should be taken at the earliest possible moment, in the atmosphere of a new Dáil and in an atmosphere in which it could not be stated that we or those associated with us were advocating this reform, in which we believe, with a view merely of catching votes. That could not be said of a motion which was put down immediately after a general election when the Government had obtained, perhaps precariously but still obtained, a majority in the House. It could not be said of such a motion that it was put down with a view to catching the votes of a few civil servants in perhaps five years' time.
I want to say again that this is a motion with which all Parties in the House are in full agreement, with the possible exception of the very Ministers who committed themselves up to the hilt in their public utterances and in their private assurances to their political associates some years ago. The claim that is put forward — which I advocate and which the Party that I represent stands for—by the Civil Service can be stated shortly. The Civil Service has agitated over many years for the setting up of effective arbitration and conciliation machinery on lines corresponding as nearly as possible, in view of the difference in circumstances here in this country, with that which exists in the British Civil Service for many years past, and which has worked very satisfactorily from the point of view both of the Civil Service and the Treasury, and incidentally, through the Treasury of the British taxpayer.
We are not taking any leap in the dark by the proposals which are embodied and suggested for adoption by the House in the resolution I am moving because we have before us the experience of the working of similar machinery to that which we are asking to have set up here in the British Civil Service. We have the advantage of what that machinery is, and of how far it can be adapted to the conditions existing in this country, and to our own Civil Service.
As I said on the discussion of Deputy Norton's motion, we do not advocate a slavish imitation of the British model. But when we find, as we do find, that our Civil Service is based, and rightly based, on the British model; when we find that the financial structure of this State is based on, or analogous to, the structure of the British Constitution; when we find that in the British Civil Service, within the framework of the British Constitution, a tentative system of arbitration machinery has worked satisfactorily to all parties, we start in the consideration of these problems with the assurance that we are going to do nothing that is revolutionary and nothing that is going to cast any great burden on the taxpayers. We have two parties to this dispute, if we may call it a dispute — the Civil Service, represented by its various organisations, and the taxpayer, who is represented by, or ought to be represented by, the Minister for Finance. The Minister for Finance is responsible to the Dáil in matters of finance, and, through the Dáil, to the people. We have, therefore, in the consideration of proposals such as these to consider not merely the, perhaps, selfish interests of the Civil Service, but also the vital interests of the taxpayer. In passing, I may remark that perhaps the interests of the taxpayer have not always been as jealously guarded in various matters by the Minister for Finance as, apparently, he intends to do in reference to the demands of the Civil Service. At all events, it is his duty — and I recognise it to be such — to safeguard the interests of the taxpayer. Not merely do I recognise that, but the people I represent recognise it to be his duty and right. So do the Civil Service and its organisations, I believe, recognise that right, because embodied in the motion I am moving is the overriding condition that all the recommendations which would be made by the arbitration board that would be set up to deal with these disputes and differences should be subject to the authority of the Dáil. The Civil Service and its organisations have made abundantly clear that all their proposals are subject to the overriding authority of the people's Parliament, and that principle must be firmly kept in mind in any discussions that will take place on these proposals.
I do not intend at present to go down through the history of this matter. It has been covered again and again, and it was very elaborately covered by Deputy Norton on the last occasion on which this matter was discussed. A few words will be sufficient to put Deputies who may not have been here when the discussion took place on the last occasion in possession of the relevant facts. Our Civil Service, as I said then and as I repeat to-night, is closely modelled on the British Civil Service. Our financial structure is closely modelled on the financial structure of the British Constitution. When we were discussing this matter on the last occasion I dealt with the argument based upon constitutional law and practice as those matters bore upon the consideration of this topic. I shall deal with them very shortly to-night before I finish.
At that time, I was dealing with the Constitution enacted in 1922 and, particularly, the provisions of Articles 37 and 61. I did throw out the suggestion that, in the amendment of the Constitution then spoken of but which had not then seen the light, if the Minister found any difficulty in connection with the arbitration proposals from a constitutional point of view, the opportunity was presenting itself when the Constitution came before the Dáil to set that matter right. We have had the amendment of the Constitution enacted and I find that Articles 37 and 61 of the old Constitution are copied, if not verbatim, almost verbatim into the amendment of the Constitution enacted last year. Article 37 finds its counterpart in Article 17 (2). Article 61 of the original Constitution finds its counterpart almost verbatim in Article 11. From the point of view of constitutional law, we find ourselves to-night in precisely the same position and governed by precisely the same constitutional requirements that existed on the 11th March last year, when this matter was first brought before the Dáil on Deputy Norton's motion. I want to repeat my own declaration of faith in reference to the Civil Service — that I am convinced that for the preservation of this State, in order that this State may exist as a democratic entity and that its affairs will be conducted with efficiency, with honesty and without corruption, there is a vital necessity that there should be a contented and efficient Civil Service, independent of political considerations and, so far as possible, independent of political control. At the same time, while it is essential in the public interest that there should be such an efficient and, as far as possible, independent Civil Service, another danger has to be avoided — the danger of bureaucracy. I believe that both these dangers — the danger of political corruption, on the one hand, and the danger of bureaucracy, on the other hand — can best be avoided by the introduction of the arbitration and conciliation machinery proposed in this resolution.
The Civil Service have advocated this course for some years. At the general election in 1932, certain promises were made on behalf of the Fianna Fáil Party to the electorate that, if returned to power — as they were subsequently returned to power — they would bring forward proposals for arbitration in the Civil Service. Following upon that election promise, the Government set up in 1932 what came to be known as the Brennan Commission. An intimation was apparently conveyed to that commission that the Government had accepted, in principle, the idea of arbitration for the Civil Service. The Civil Service waited two years in the honest belief that the promises of the Party that subsequently became the Government would be carried through. They waited for two years until the interim report of the Brennan Commission was published on the 5th February, 1934. That report came as a complete disappointment and disillusionment to the Civil Service because, while it pointed out that, apparently, the Government had accepted the principle of arbitration, that did not prevent members of the commission from really torpedoing the whole principle of arbitration for the Civil Service, for the reasons they purported to set forth in the interim report, and they accordingly set themselves out really to nullify the entire principle of effective arbitration for the Civil Service.
Notwithstanding that the report was published somewhere about February 5th, 1934, and that the Government was to give effect to their promise of the principle of arbitration for the Civil Service, which they stated they accepted, no such proposals were given to the representatives of the civil servants until somewhere about June, 1935. These proposals were promptly and unanimously turned down by the Civil Service organisations. I think I am right in saying that they were such as did not embody one single principle underlying the principle of arbitration. They were nothing but a sham and a fantasy, and were promptly, effectively and speedily turned down by the Civil Service organisations. From June, 1935, until the end of March, 1938, the Government have taken no steps whatever towards carrying out the principle which they said they had accepted in relation to arbitration for the Civil Service.
An endeavour has been made here from time to time to get the Government to take up a stand one way or another on the matter. The only overt act the Government has been responsible for in reference to the matter has been the promulgation to the Civil Service organisations of an alleged scheme of arbitration which in no single instance embodies the principle of effective arbitration in any way. We have not been able to get any statement of Government opinion in the course of these discussions. Perhaps we will be able to get it from the Minister on this motion and, if so, we will look forward to it with interest, in order to get now, after a lapse of so many years, what are the reasons which the Government have to put forward to justify the attitude they have adopted. It may be that the Government will say, because they had turned down the Civil Service before the last election in July of last year, that they had now got a mandate from the people not to have arbitration for the Civil Service. They came in fresh from the polls in 1932, after their promise to civil servants, and they now come here, some eight months after the last election. They had a mandate from the people in 1932 to give effect to the principle they set out in their election manifesto, that of effective machinery for arbitration in the Civil Service. That was conspicuously lacking in the manifesto that appeared at the last election. They had a mandate in 1932. It is equally open to the Government now to say that they have no mandate, and that the people did not want this, because they returned the Fianna Fáil Party at the last election. I propose, however, not to deal with these matters now. I do not propose to examine the promises made in 1932 beyond telling the facts. I want to discuss this as a question of principle.
The only argument I have ever heard advanced — and the only argument that appears in the interim report of the Brennan Commission — against the idea of arbitration for the Civil Service is the argument based on the so-called unconstitutionality of the proposal. It is with that aspect of the case I propose to deal now very shortly. In effect, the answer is that if proposals were put forward by the Civil Service, that there should be arbitration machinery by which an independent board would be set up, with representatives of the Civil Service and the Minister for Finance on it, and with an independent chairman to decide between them, and if these proposals were put into force they, in effect, would be depriving the Dáil of the power it had over finance and the power of the purse. If these proposals are unconstitutional, or would be unconstitutional under the existing Constitution or under the last Constitution, then they are unconstitutional in England.
I have not yet heard from the Minister or from any spokesman in the Government ranks that they have got any legal opinion from anybody — I do not care who it is — that these proposals would be unconstitutional. I have repeatedly pledged my opinion in public, and as explicitly as I could do it, that these proposals are not and were not unconstitutional, having regard to the constitutional provisions that existed up to December of last year. I now state explicitly that they would not be in any way in contravention of any Articles of the Constitution that came into operation in December of last year. I want to know if the Minister has any legal opinion to put against that opinion, and, if so, the reasons for it. I gave reasons at great length on the last occasion. There is nothing written down in the present Constitution in any particular Article or clause that would in any way prevent the proposals from becoming operative. The civil servants have made it quite clear that the proposals they wish to put into operation are subject to the overriding authority of the Dáil. The Minister has to agree that he will accept the recommendation of the award of the arbitration tribunal and will recommend that to the Dáil for acceptance. The entire power lies with the Dáil to say whether or not the proposals embodied in the award of the arbitration tribunal will or will not be accepted by the people's representatives, acting in the interests of the general taxpayer. I want to repeat what I said before, that it is possible under our system for a private citizen of the State to sue the State, through one of its departmental heads or a Minister of the State, and to get pecuniary judgment for any money or damages against the revenues of the State, and such a pecuniary award, whether of money or damages, may be confirmed by the highest court in this country, the Supreme Court of Justice. Notwithstanding all that, the successful litigant who obtains such pecuniary judgment has no authority, nor is there any machinery in existence to enable him to enforce that award against the revenues of the State if the Dáil refused to vote the money required to discharge the amount of that award or judgment. Even if the Dáil did appropriate specifically sufficient moneys out of the public purse to discharge such an award of the highest court of our country, it would not be possible for the successful litigant to enforce against the State, with the ordinary machinery available between private individuals, payment of the amount of his award. There would be, therefore, no difference between the award of this arbitration board and the award of the Supreme Court of Justice or of the High Court of Justice from the point of view of the guardianship of the public purse. We have also the example of the tribunal presided over by Judge Davitt, dealing with claims under Article 10 by civil servants who deemed that their rights had been prejudicially affected, or who wished to retire in accordance with the conditions laid down in the Act of 1929. The awards of that tribunal could be flouted either by the Dáil or by the Minister if he so wished, if he had sufficient lack of public spirit or lack of sense of responsibility to do so. The point I wish to make is that any awards of the board which would be set up in accordance with the proposals of the civil servants would, from the point of view of constitutional law and from the point of view of the control of the public revenues of this State by the representatives of the people in Parliament, differ essentially very little from the awards of the High Court, or of the Supreme Court, or of the Judge Davitt tribunal dealing with claims under Article 10 of the Treaty.
I analysed and criticised the arguments or so-called arguments embodied in the interim report of the Brennan Commission in reference to the so-called unconstitutionality. I want merely shortly to repeat here that there is no justification given in any single line of that report for the allegation that the proposals of the Civil Service are unconstitutional. The only reference is a reference to what was then Article 37 of the Constitution, and which is now Article 17, paragraph 2, of the Constitution. I pointed out and I repeat that the then Article 37 and now Article 17 (2) embodied a proposal with the same principle as exists in the Standing Orders of the British House of Commons. It is a clause which provides that proposals for the expenditure of public moneys can only come from a responsible Minister, and after a formal message has come before the Dáil from the Government. That principle is embodied as a principle of the unwritten law of the Constitution in England in one of the Standing Orders of the British House of Commons, but though it is named merely in the Standing Orders of the British House of Commons it is, in fact, one of the fundamental principles of the British Constitution in reference to the control by the House of Commons of the expenditure of public moneys. That has nothing whatever to do with the proposals of the Civil Service. The provisions in the Constitution merely prevent irresponsible Deputies — from political motives, in order to show that they are looking after the interests of their constituency — from making ridiculous and irresponsible proposals for the expenditure of public money. The Government as a Government is supposed to have some sense of responsibility in reference to proposals for expending public money. The rule, therefore, is that no such proposals can be initiated except by means of a message from the Government, and through a Minister, a member of the Government. What that has to do with the question of the constitutionality or unconstitutionality of the proposals to set up arbitration between the Civil Service and the Government I entirely fail to comprehend. I reiterate here now that there is nothing in the Constitution which in any way prevents the enactment into law of machinery of the type that the civil servants wish for. Even if the proposals that they put forward were accepted by the Minister, were embodied in an Act of this Parliament, those proposals would still be within the letter and, in my opinion, also within the spirit of the constitutional provisions.
I said at the outset that there were two parties to this matter, one, the general taxpayer and the other the Civil Service. I have a feeling that there is a third party lurking in the background. There ought to be only two parties, the taxpayer and the Civil Service. It ought to be possible to find some machinery which would satisfy the right demands, the just demands, and the right interests of both parties. But because of this nebulous and grasping personality that exists in the background, I believe that the whole aim and object of the Civil Service is being frustrated in the interests not of the taxpayer, not of the Civil Service but in the interests of departmental control by the officials of the Department of Finance. When we started the State here we started a Civil Service, and we modelled it upon the British Civil Service — a very sound model. Unfortunately, in the taking over of that, we took over a lot of their old and bad principles and traditions. We took over many of the outworn traditions of the British Treasury in our Establishment Branch of the Department of Finance. We took over the old view that civil servants were the creatures of their masters. The masters were nominally the Executive Council representing the people, but the real masters were the bureaucrats who controlled them in the Department of Finance.
