Dáil Éireann debate -
Thursday, 30 Nov 1939

Vol. 78 No. 5

Diplomatic and Consular Fees Bill, 1939—Second Stage.

Minister for Finance (Mr. O Ceallaigh)

I move that the Bill be now read a Second Time. The purpose of this Bill may be stated in general terms to be to supplement the provisions of the Commissioners for Oaths (Diplomatic and Consular) Act, 1931. That Act authorised the collection of fees by our diplomatic and consular officers abroad for services of a purely "notarial" character, that is to say, services such as would be rendered in this country by a notary public or commissioner for oaths. The present Bill is intended to authorise the collection of fees for the performance of services which are not notarial services rendered both by Irish diplomatic and consular officers abroad and by the headquarters staff of the Department of External Affairs here at home. These services fall, broadly, into two classes—those for which a fee is at the moment charged, and those now rendered free of charge.

The most important class of service for which a fee is at present charged is that which is performed, particularly in the United States, in relation to the estates of persons dying intestate. Irish consular officers are often called upon to trace next-of-kin to conduct correspondence, and even to appear in American courts on behalf of Irish claimants to these estates and, if distributive shares fall to be distributed to persons resident in Ireland, the shares are distributed through our consular officers. For these services, it has been customary for American courts to allow a fee on the shares distributed. As this fee rests, at the moment, only on the authority of these American courts, it is now proposed to give a statutory basis for its collection.

There is also a large class of services which at the moment are rendered free of charge. Examples of such services performed by the headquarters staff of the Department of External Affairs are the authentication of the official status and the seal of various Irish public officers for the purpose of proceedings in foreign courts and otherwise, and the issue of the documents known as "certificats de coutume”, that is, authoritative statements of the law of Ireland on various matters, over the seal of the Minister for External Affairs. An example of the services rendered by our diplomatic and consular officers abroad for which at the moment no fee is chargeable is the service of writs issued by Irish courts on Irish nationals resident in the country to which the diplomatic or consular officer is accredited. Many other such services might be mentioned. It is obviously right that a fee should be charged for services such as these which often involve the expenditure of much time and trouble by the officials concerned, and it is accordingly proposed to authorise the collection of fees in such cases.

The scheme of the Bill is simple. It would be impossible to anticipate in advance all the services which diplomatic and consular officers may be called upon to perform from time to time. Therefore, Section 2 of the Bill proposes to enable the Minister for External Affairs, with the consent of the Minister for Finance, to make regulations fixing the fees to be charged for specified services rendered by persons to whom the Bill applies. These persons are set out in Section 4. Sub-section (1) of Section 2 provides that the regulations are to specify the particular service for which fees are to be charged, and to fix the amount of the fee for each service. Power is taken under sub-section (2) to make different regulations in relation to different persons to whom the Bill applies and in relation to different countries and places. The need for this provision is obvious from the difference in the laws and currencies of the various countries to which our diplomatic and consular officers are accredited. Sub-section (3) will enable the Minister to waive the fee in certain cases where for one reason or another it seems right that no fee should be charged. Sub-section (4) provides in the usual manner for the Parliamentary control of all regulations made under the section. Section 3 provides in the common form for the collection and disposal, and the recovery of fees. Provision of an identical or similar type appears in all Acts giving power to charge fees. Section 4 sets out the classes of persons to which the Bill will apply. Paragraphs (a), (b) and (c) enumerate the various kinds of diplomatic and consular officers in the service of the State, and paragraph (d) includes other officers of the Minister for External Affairs, including members of the headquarters staff of the Department, who may be appointed by the Minister to be persons to whom the Bill applies.

In order that no conflict may arise between this Bill and the Commissioners for Oaths (Diplomatic and Consular) Act, 1931, it is provided by Section 5 that the powers given by this Bill are to be in addition to, and not in substitution for, the powers given by that Act.

Mr. Dillon

One useful function discharged by our consuls abroad, particularly in the U.S.A., is the investigation of estates whereunder our people benefit. In the West and South of Ireland it is quite a common occurrence to have country people bring into you American legal documents setting out that they are the next-of-kin and that a lawyer in America has been required by the Probate Court to communicate with them prior to the distribution of a deceased person's estate in America. In the old days, more than one case came under my notice in which simple people in the West of Ireland were in process of being ruthlessly plundered by unreliable practitioners in the U.S.A. One was able to get those with whom one was fortunate enough to come in contact into the hands of a good American practitioner, protect their rights and recover whatever they were entitled to. When one set oneself to the task of doing that, one found it of such complexity and difficulty that one readily understood how the simple country person was plundered unless he had the assistance of somebody here who knew the ropes.

One of the most valuable reforms brought about by our consular and diplomatic officials has been that there has been made available to the simplest person in any part of the State an absolutely safe procedure for protecting his property in any country where we have consular representation. He need not come to me to inquire from me if I know any reliable lawyer in the U.S.A.

If he goes to any sergeant of the Guards or to a peace commissioner, or to anybody who knows anything at all, he will put him in touch with our consul in New York, and from that moment the consul in New York constitutes himself the protector of the rights of the citizens of Eire, and does everything necessary to safeguard his interests. If we are going to make that service dependent on the payment of a fee, then I am afraid the country people will not avail of it as readily as they now do. It may seem unreasonable that people who are about to benefit under a will should not be prepared to pay a modest fee to the consular official who acts for them, but it is not so unreasonable when you have experience of the business.

Let me tell you of an incident that came to my attention no later than last week. A friend of mine consulted me about such a case. He was informed that he was one of a number of next-of-kin of a deceased intestate in the U.S.A. He looked forward to inheriting a substantial sum. I put him in touch with the consul in New York. He, with his usual high efficiency and courtesy, dealt with the matter promptly and informed me that the heir to the estate might rest assured he would protect his interests. After four or five weeks, he wrote that he had gone into the matter carefully, examined the schedule of assets and found that there were 42 next of kin and that the total assets amounted to 95 dollars. The man who consulted me would receive about 35 cents as his share of the estate. My friend said: "What I never had, I shall never miss." He went off about his business and was philosophical about it. Suppose, however, that you had required that man to pay a fee of ten or 15 dollars, or two or three guineas, what would happen? The story would get about eventually, and what would happen would be that the country people, instead of looking for the right kind of help to get these estates properly dealt with, would simply say: "Ah, if we get the money from this estate, well and good, but if we do not, we are not going to send good money after bad by feeing a lawyer to look after our interests, because it might turn out that there might not be enough money to pay his costs." In doing this, we re-create the abuses which formerly existed—and which still exist—which justified the establishment of vice-consuls in New York, Boston and San Francisco.

If you are to bring about this system of fees for that service, whether the fees be reasonable or unreasonable, you will be recreating these abuses, and it will simply mean that the people concerned will cease to avail of that service. Now, that was an excellent service. It was one of the social services which is hard to defend on cold, economic argument, but taking one consideration with another you are protecting the interests of simple people who did not know how to protect their own interests. On the whole, it was a very good service and, in addition to the publicity value that it had for the State, it had the additional social value that the simplest person in this country would be assured that they could not be "gypped" by a dishonest lawyer who managed to get control in America of the estate concerned.

Some people here may think that I am taking up too much of the time of the House in this matter, but I think I am entitled to inform the House of certain matters of which the House ought to be aware. The United States of America is a country with a life and a culture of its own, but in the United States of America, while there is a very high standard of living, of ethics, and of propriety, generally, in the professions, there is, nevertheless, a substantial number of people there who have a very low ethical standard, and one of the favourite occupations of some of these gentlemen in the legal profession—and, indeed, some of them are ladies....

Mr. O Ceallaigh

Some of them are what?

Mr. Dillon

Ladies. I mean, women lawyers—one of the favourite occupations of these people is to go around the courts nosing out estates of this kind. They have a system there of going into the probate courts and finding out particulars of cases of intestacy. These lawyers, who are popularly described there as "shyster" lawyers, collect whatever information is available to them, get in touch with people who may be concerned, and then, once they have got a certain amount of information, they make motions in the courts which give them a kind of a standing in the courts of the United States, and unless you know how to tackle them, by a series of manoeuvres, you will find it very hard to displace them from the position they have secured, or you may find that the costs of displacing them from that position and getting a reliable lawyer in control of the estate would eat up most of what remained of the estate. Nobody, except somebody on the spot, who understand intimately all the procedure that must be adopted can properly grapple with these problems. It must be remembered that such things are a matter of State procedure, and not of Federal procedure. The procedure differs from State to State, and therefore, it is peculiarly necessary, when we know that so many of these estates are in the United States of America, that we should have consular services there, and consular services which, for this purpose at any rate, would be available, free, to the citizens of this State. Accordingly, if this power to charge fees is to be given for any service done by a consular official, I would ask the Minister to give an assurance now that certainly, in so far as our consuls serve the citizens of this State in probate matters, they will not charge fees for that service, and that such service will be, as it has been in the past, free to the citizens of this State.

Mr. O Ceallaigh

I do not think I can give Deputy Dillon the promise he asks for, but we are, in fact, meeting the position about which he spoke. Deputy Dillon evidently knows a good deal about this problem. It is a problem that has existed for a long time— this problem of people dying intestate in the United States of America. As the Deputy knows, most of such cases arise in connection with the United States rather than in connection with other countries. As a matter of fact, the courts have the custom now of awarding a fee of 2½ per cent. to the consuls in connection with all these estates, and there is some understanding that the consul would collect that fee from the courts. That is the practice, but we have no power to waive it. We will have certain powers of waiver in the Bill. I was not connected with this Department, but I have been backward and forward a good deal in the United States, and I have come across complaints from time to time, through mixing in Irish circles, of the way in which people, as Deputy Dillon properly says, were robbed by these "shyster" lawyers. What happened was that certain people—some in Ireland and some in the United States— were entitled to a share in the estate of a close or even a distant relative who happened to die intestate in the United States, and these lawyers adopted the practice, as Deputy Dillon has described, of going to the courts and finding out particulars about these people. The first thing these lawyers did was to go to the prospective clients and get them to sign away a considerable proportion of what they might expect to get. In some cases, I understand it was as high as 60 per cent. or 70 per cent. of the estate, whether the estates were large or small. The people concerned did not know what they would get, and, possibly, they said to themselves, as Deputy Dillon has pointed out: "Well, if I do get something, it was something that I did not expect to get, and I might as well pay a good sum for it", only to find out later on that they were literally robbed of considerable sums, in some cases at least. Our consuls, when they were established in New York, Boston and San Francisco, followed up these cases and tried to get the Irish people, who had claims in such estates, out of the hands of these "shyster" lawyers, but, as Deputy Dillon knows, the consuls found it next to impossible to shake off the grip of these people. I may say, however, that, so far as New York is concerned at any rate—through the activities of the present Consul-General in New York—they have succeeded now, to a large extent, in shaking off that grip. As Deputy Dillon has pointed out, these things are a matter of State law, and not of Federal law, and each State has its own rights in these matters. In New York, our Consul-General there—and I think he is the person to whom the credit is due—has succeeded in getting the New York State Legislature at Albany to bring in new legislation, and the consul now has a definitely legal status to interfere in these cases and through this new legislation he has been able to shake off the grip, to a considerable extent, of those lawyers who heretofore derived so much profit out of this class of business.

There was a custom, as I said earlier, of charging a certain percentage on the amount distributed. If there is no distribution in future there will be no fee, and if the amount is small there need not be any fee. It will rest with the different consuls—in New York Chicago, etc.,—to decide whether a fee is justly and reasonably payable or not; and if a particular person comes before them who is poor and wants every cent. he can get, the consul can waive the fee or say no fee will be asked for in advance in this particular class of cases. In that way a good case admittedly made by Deputy Dillon will be met under the present head.

The various other types of work that the consuls have been doing is most useful work. Our people here at home and all over America have found our consuls most useful and helpful. By this amending legislation, amending the Act of 1931, they will be put in a better position to give that service. They will have an official status and will get further recognition from the courts and from authorities both State and Federal, to do work that ordinarily would be done by a commissioner for oaths here, or by a notary public. They will be in a position to act also in the case of any other type of work besides work regarding estates. They can act for nothing if they think that the case is a deserving one. Of course, their services will be still available to all persons, and I hope they will be availed of more and more as time goes on and as the merits of the good work they have been doing become better known

Mr. Dillon

Are the fees here part of the miscellaneous receipts of the Exchequer?

Mr. O Ceallaigh

Yes.

Mr. Dillon

And they are all paid over to the Exchequer?

Mr. O Ceallaigh

Yes.

Question put and agreed to.

Agreed to take the remaining Stages now.