I notice there are certain sections in this Bill which apparently have a temporary character only. Does it follow that once the Bill becomes law, the question of the period of emergency settles that problem? Is it only in the period of emergency that this measure will be in operation?
Committee on Finance. - Defence Forces (Temporary Provisions) (No. 2) Bill, 1940—Committee Stage.
Sections 1, 2 and 3 put and agreed to.
SECTION 4.
Question proposed: "That Section 4 stand part of the Bill."
Yes, as regards the emergency provisions.
Did the Minister get advice on that? It is altogether a question of law. The Minister is really expressing an opinion. Not one of the expressions in this section is given under the definitions in Section 2.
In fact we have not the power to deal with this except in this manner.
I take it the Minister is anxious that the Bill should have a limited period of duration. There will be some limit to its period of duration though it may be in operation for a long period?
Yes, that is right. There will be a limited period of duration as regards the emergency provision.
We are prepared to give the Minister power to deal with emergency situations but not to give him powers to continue that emergency situation. We are not fixing the limit of time of the period of emergency, but we object to having special clauses embodied in the Bill which normally would not be made statute law in this State except for a period of emergency.
I take it there is no desire on the part of the Government to take these powers other than for a state of emergency. It is a matter that will be dealt with at a later stage when the Defence Forces Act comes along at a later period.
Would the Minister consider any provision or give any guarantee that the Bill has a definite duration, that is a reasonable period of duration, having regard to the emergency provided for in this Bill?
We will consider it.
There has already been a declaration of a state of emergency. That exists in the legislation passed here last September. Does this Bill deal with another state of emergency or is it the same one?
I would say it is the same state of emergency. In respect of this Bill we have got to procure certain powers to deal with a certain situation with which we have not been in a position to deal previously. This Bill will give us the power to do this. For instance, we have no power to enlist men for the period of the duration. This Bill gives that right and at the end of the emergency to allow the men to go free.
Would it not be as well if one declaration of a state of emergency covered both matters? The provisions here would automatically come in with the declaration of emergency which was made last September, and possibly that state of emergency need not be made to-day?
Question put and agreed to.
Sections 5 to 10, inclusive, put and agreed to.
SECTION 11.
Question proposed: "That Section 11 stand part of the Bill."
Section 11 deals with the adaptation of plant of transport undertakings only. Does the Minister not require these powers so that he could take ordinary commercial vehicles or has he that power elsewhere if the necessity arises?
We are satisfied with what we have here.
Question put and agreed to.
Sections 12 to 16, inclusive, put and agreed to.
Section 17 is merely descriptive.
Sections 17, 18 and 19 put and agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill."
Section 20 deals with the position of an officer on reaching a certain age. I presume that the fixing of the age for a commission is a matter that has been prescribed. I take it that it is not the Minister's intention to enact that during a period of active service a number of persons on reaching the age of retirement are going to be retired?
Yes.
Question put and agreed to.
Sections 21 to 30, inclusive, put and agreed to.
SECTION 31.
This is a section which calls for having a date put down to the period of emergency. It appears to me that there should be two periods of emergency—one a longer period and the other a shorter period, being the one in which the soldiers who are recruited for the emergency are entitled to retire. The emergency may last for a longer period. It may last for 12 months or so after the cessation of hostilities. It is sometimes presumed that there is not a normal condition of affairs until the terms of peace have been settled. I expect that the Minister does not want to keep these troops during that period, that it is only for the emergency that he requires them, and that he will not keep them a day longer than is necessary?
Yes. The Army would naturally allow these men to leave gradually as the emergency seems to decrease. There can be no such thing as a specific clear-cut line so that you can say: "Now, the emergency is ended" or anything like that. As the Army authorities see the emergency decreasing they will begin to allow these men to go out.
Question put and agreed to.
SECTION 32.
Question proposed: "That Section 32 stand part of the Bill."
There is one point in connection with this section. I think that when a soldier is being discharged he ought to be conveyed free of cost to any place to which he wants to go. This section limits the conveyance free of cost to the place where he appears to have been resident when he enlisted or to any place at which he may at the time of his discharge decide to take up residence and to which he can be conveyed without greater cost. Will the Minister look into that point??
Yes.
It may only be a matter of 5/- or 10/-, but there is often great dissatisfaction about it.
If a man gives his home address when attested, that is where he will be sent to.
Question put and agreed to.
Sections 33 to 40, inclusive, put and agreed to.
SECTION 41.
Question proposed: "That Section 41 stand part of the Bill."
I want to get an assurance from the Minister. Sub-section (1) reads:
"Every member of the Defence Forces shall be liable to be employed on military service anywhere within the area of application of the Acts of the Oireachtas."
I take it that, after consultation with his legal advisers, the Minister agrees that in respect of this Bill the area of application is the area of jurisdiction, or what is colloquially described as the present Twenty-Six Counties?
The area of the State.
In any case, not outside the area of the Six Counties and the Twenty-Six Counties combined, or the definition as set out in Article 3 of the Constitution?
The definition as given by the draftsman is the area of the State, and that is fairly acceptable.
Question put and agreed to.
Section 42 agreed to.
SECTION 43.
Question proposed: "That Section 43 stand part of the Bill."
There is one matter in connection with the present calling up of troops to which I should like to refer. There are numerous cases of farmers who are in the Army Reserve and who are married men with young children. They have a considerable area of tillage to look after, and if they are called to the Army there will be nobody left to look after the farms. Has the Minister taken any steps to set up a board to see that these men are released immediately? If not, their crops will be ruined as they cannot afford to pay men to look after them. Is the board set up last September still functioning?
The Exemption Board —yes.
It will act under the present Bill also?
That is so.
Question put and agreed to.
Sections 44 to 48, inclusive, put and agreed to.
SECTION 49.
Question proposed: "That Section 49 stand part of the Bill."
This section introduces a new principle, unless I am mistaken, namely, that of an officer being tried summarily by an authorised person. Presumably the reason for the introduction of this is that, during the period of emergency, it will be difficult to arrange for the setting up of courts-martial. I think that is one of the explanations for it. Two points arise in connection with this. The first is that it amounts to a judicial act on the part of commanding officers who are not experienced in the law. The second point is: when exactly will the commanding officer make up his mind as to what is to be the penalty to be inflicted in a case of this sort? It may be a very good system, but it is open to considerable abuse. It would be well if the commanding officer had the benefit of the advice of some legal officer in connection with a matter of that kind. On the other hand, it is inadvisable, particularly in the case of an emergency, to have courts-martial. There would be delay in setting them up and, possibly, the officers should be discharging other duties. But, in the normal course, it is not very advisable to have a commanding officer doing this. The term used is "authorised officer", and that looks as if he were to be somebody almost on a par with the commanding officer. Will the Minister tell us something about this particular section and how he proposes to take precautions so that there will not be abuses?
This is really intended to deal with minor misdemeanours. Heretofore, an officer who committed some minor type of indiscretion could not be punished by his commanding officer or, if the commanding officer did inflict some minor type of penalty, the officer had the right to demand a court-martial. As the Deputy is aware, a court-martial means considerable expense, apart from taking up the time of the officers concerned, and it has been deemed necessary to have officers to deal with this minor type of indiscretion. There is certainly no question of doing away with courts-martial for the more serious types of offences. I can assure the Deputy that the officers concerned will in fact have legal advice. In every command area there are one or two or more legal officers appointed who, on all occasions, can be consulted by officers who have to make decisions of a legal character. I can assure the Deputy that the people involved will be safeguarded.
There is another phase of this which I wonder if the Minister has considered. An officer, after all, is in a very responsible position and should have some respect for the dignity of the commission which he holds. It would be very inadvisable if, by reason of the operation of a section such as this, officers felt that they could commit minor indiscretions and merely be fined £1, £2, or £5, as the case may be. It would reflect on the service as such. This section might reasonably give rise to the impression that these minor indiscretions could be committed with impunity. An officer who committed an indiscretion should be "told off" by his commanding officer, and there should not be even a fine. If there were a couple of such cases, that officer should be brought before a court-martial. Nobody wants Army officers who are undesirable in the Army. They should be men of good character, and should be able to live without having these methods adopted in order to impose discipline. I do not like the clause, and I hope there will be no attempt when this emergency is over to put it into military law.
If an officer feels that he can take a risk and commit a minor indiscretion, in the hope that he will get away without the punishment provided in this section, it is also within the authority of the investigating officer under sub-section (2) (b) (iii) to insist that the officer be brought to trial by court-martial. If he came up frequently for minor indiscretions, under sub-section (3) (b) he could be brought up for trial by court-martial, so that really there is a way of dealing with a person who is always, so to speak, walking the tight-rope. I should like to have an assurance that such an officer could be dealt with under sub-section (2). The procedure to be adopted there on the part of the commandant or other officer of higher rank is clear. Under sub-section (2) (b) the commandant can take steps to dismiss the charge, can bring the officer to trial by an authorised officer or can, because of the nature of the case, or the recurrence of a number of cases, insist on trial by court-martial. In sub-section (3) it is provided that an authorised officer may when a case is brought before him, dismiss the charge or award any of the following punishments: (i) a fine not exceeding £5, (ii) a severe reprimand or (iii) a reprimand. Can I take it from the Minister that if the authorised officer feels that the case is one in which the charge should not be dismissed, but any of the fines imposed, then the officer, before any severe punishment can be inflicted on him, has the right to ask for trial by court-martial?
That is actually the law at the present time. In answer to Deputy Cosgrave, no officer will be anxious to commit an indiscretion because every one of such indiscretions would be recorded on his sheet and the possibility of his ever receiving promotion, with a series of even minor indiscretions against him, would be very slight. His chances of promotion would be very small. In itself that would be a deterrent.
Question put and agreed to.
Sections 50 to 53, inclusive, agreed to.
SECTION 54.
Question proposed: "That Section 54 stand part of the Bill."
I do not know the purport of this section at all. I do not like it, and I do not like giving anyone the right to have anyone arrested on mere suspicion. Assuming a man is a deserter, why provide machinery to bring him before a Peace Commissioner or a District Justice, when he is, in fact, a member of the armed forces? Could not that fact be confirmed by the military authorities? I do not like the idea of giving anyone the authority, even in a case of emergency and for cause unknown, or perhaps owing to some personal enmity. Surely all the Gárda stations will be notified and the Army authorities will be aware that A.B. is a deserter, and in that case he can be taken into custody. It is going too far to give wholesale authority to have such people brought before a Peace Commissioner or a District Justice. Simpler machinery would be to provide that all Gárda barracks and military stations will be informed that A.B. was a deserter, and to be on the look-out for him and detain him. To give a blank cheque to anyone to act on suspicion, when perhaps there was no ground for it, seems to me to be likely to cause trouble, especially where a person might think that some other person should have joined the armed forces. Deputies can visualise the situation where a person might be arrested on suspicion and apparently would have no protection.
This simplified the former manner of dealing with deserters from the armed forces. Heretofore, a deserter had to be brought before a District Justice and very often that entailed confining that person in durance vile. We suggest a simplification of that procedure, and if a deserter is discovered in a small village or town he can be brought before a Peace Commissioner, who simply remands him to military custody. He can then be dealt with for what he is, a deserter, from military service.
Question put and agreed to.
Section 55 agreed to.
SECTION 56.
Question proposed: "That Section 56 stand part of the Bill."
This is a rather all-embracing section. I do not mind giving all the concessions or departures from the ordinary law if we can get an undertaking that these powers will not be abused. For example, take the speed limit. I never heard of a military lorry being arrested for loitering. The same remark applies to lighting or driving licences. I take it that the intention is not to make life more insecure than it is. Will the Minister give an under taking as to how this section is intended to function?
I would be prepared to give the Minister these powers in case of actual invasion, as distinct from an emergency, and to give liberties to military vehicles on the public highway, but I am not prepared to give a blank cheque merely because there is a state of emergency but no actual hostilities. The section is too wide as it stands.
I can assure Deputies that there is not going to be any misuse of the section by the Army authorities. Every soldier who takes out a lorry or any other vehicle is responsible to his commanding officer for its safe return, and, therefore, he is not going to take any risks. None of us can say when the actual emergency, that we all anticipate, is likely to occur, but if it does arise, Deputies will agree that speed limits will go by the board if the exigencies of the situation should demand it. I can assure the House that there will be no misuse of the section from the point of view of the excessive speed of lorries driven by soldiers belonging to the Defence Forces.
Does the Minister draw a distinction between an emergency and invasion?
I would not like to.
To-day, to-morrow and every other day during the duration of this war will be a day of emergency. During that period of emergency is a blank cheque to be given under the section?
I do not think there will be any abuse of the section.
Will these soldiers be insured?
Question put and agreed to.
SECTION 57.
(1) Where——
(a) either——
(i) a person who is a reservist has been before, or is, after the passing of this Act, called out on permanent service, or
(ii) a person enlists in the Forces, and
I move the following amendment:—
In page 20, line 48, after the word "Forces" to add the words "for a period of emergency".
The purpose of this amendment is to make it clear that this provision applies only to a period of emergency. The section only makes compulsory an arrangement that is carried out by most employers when an employee returns after a period of service with the Forces, that is to see whether he could not be reinstated. I want to make it clear that it is not compulsory in cases where a man would be away serving for seven years.
I cannot accept this amendment. Men who are offering their services to the nation ought to be given some assurance that, after offering themselves to be trained and made capable soldiers in an emergency such as the present, they would be restored to their employment on leaving the Army. It did not, unfortunately, happen in the last mobilisation. There were some—I would not say many—cases where men were, in my opinion, disgracefully treated. They came along at the request of members of the Government. They offered their services, which were accepted, and they were detained in the Forces for such a period as the Army authorities thought necessary. They were then exempted from service, and when they went back to resume their employment they found that their positions had been filled by men who were just as fit as they were and who, if they had had the same patriotic ideas, should have been in the Volunteer Force as well. I do not want that to occur again, and I am pretty sure that it will not occur in the case of any decent employer in the city. The Chamber of Commerce has notified me to-day that it is advocating this to every employer throughout the country, asking them to ensure that any man joining up in the Volunteers or "for the duration" will be guaranteed his employment again at the end of the period for which he has been called up. In those circumstances, I do not think that the Deputy should press the amendment.
The Minister and myself seem to be at cross purposes. I am not suggesting that this should not apply to a person who is called up for the emergency or who enlists for the emergency. The only point I wish to make quite clear is that it does not apply to a person who runs his full time of military service under the ordinary enlistment Acts. I do not wish to narrow it to the actual period of the emergency. I want to make it quite clear that a person who has enlisted for the emergency could get back his employment. If the provision suggested in my amendment had been in force, surely the case that the Minister has outlined could not have arisen. I do not see how a person who has enlisted for the period of emergency is going to find that interpreted against him when the period is over. If the Minister can tell me what fears he has along those lines, I would be quite anxious to meet him. I only want to make it quite clear that this only applies to a person who enlists for a period of emergency and who is retained for that period.
There is some conflict in the Bill between the terms of the section and the marginal note. The marginal note states:—
"Restoration to employment of, and other provisions in relation to, reservists called out on permanent service and of soldiers enlisted in the forces for a period of emergency."
It seems to me that Deputy Dockrell is rather right in saying that the section, as it reads, would indicate that where a person enlists in the Forces— and was an employee—for, say, a normal period of two years and ten years with the Reserve, or who might continue with the Forces for five years and spend the rest in the Reserve, that person—having left employment in ordinary peace times and gone into the Army—will be entitled to get back his work after he came out of the Army. I suggest, in the first place, that if that is not the intention it would be reasonable to put in the words that Deputy Dockrell speaks of and that, in any case, the marginal note, if it indicates the intention of the Minister, would suggest that those words ought to be put in. It seems to me that there is a conflict there as it stands.
In line 12, on page 23, it is defined that the expression "enlists in the Forces" means "enlists in the Forces for the period of an emergency under Chapter II. of Part IV. of this Act". I think that covers the point fairly well.
It does.
Amendment, by leave, withdrawn.
Question proposed: "That Section 57 stand part of the Bill."
The Minister makes provision for an employee of the State —presumably of a local authority which is subject to a Minister of State —to "obtain the consent of the authority or some person acting on behalf of the authority". There is no such provision with regard to the other party. I do not know of any case in which a person going away to enlist at the present moment would seriously inconvenience an employer, but I can conceive of a case in which such might occur. A man may be engaged in a specialised kind of work and he may get in somebody who may stay for a couple of years. You give the State, on the one hand, authority to say that a man cannot go, but you do not give the employer the same right to say that in respect of anybody who does not enlist. If you are going to take the line that the State is a sort of maternal individual, the maternal care ought to be exercised all round and not in respect of certain State servants only. The Minister gives a reason for that particular exclusion and says it was made in regard to the head of a Department of State and that an employer has not that right. I am sure that the Minister can conceive of a certain man in a certain employment being almost vital for that particular kind of employment. The man goes away and the employer is put to some expense and trouble in getting another person. Having trained that person for a period of two years, perhaps, the other man may come along and must be taken back. I do not see any provision here where there is the right to make such a case as I mentioned, and I am sure that there must be such cases in connection with certain persons.
In the case of "key men".
Already several people of the type that the Deputy has mentioned have been exempted, wherever it has been brought to the attention of the Army authorities that a man is highly essential to a particular industry. Even in the case of agricultural workers, where it has been proved to the authorities that certain men are absolutely essential, they have been exempted. That applies also to persons such as the Deputy mentioned— persons in the employment of Government Departments and other employment of that kind. There is no comparison between the value of the service such people can render to the State in their present positions and the service which they would be able to render if taken into the Volunteers. In every case we shall deal as fairly as possible with claims for exemption. Everybody, of course, who makes a claim for exemption thinks that he has the strongest possible case.
The Minister has referred to the case of employees of local authorities, but suppose a private employer has a row with one of his employees, and the employee, instead of being dismissed, walks out and joins up. Afterwards when he is discharged, he will have to be taken back whereas in the case of the local authority he has to have the consent of the local authority before he joins up. The same thing does not apply in the case of the private employer.
We cannot visualise everything of that type and provide for it.
It surely would be possible to introduce some clause providing that, as in the case of public employers, a man in private employment should receive the consent of his employer before leaving.
I should like the Minister to say whether the section applies to men who have been already victimised. That is not very clear.
It has no retrospective effect.
The Minister will appreciate the necessity for protecting these men from victimisation. He stated yesterday that he agreed with Deputy Dillon that one man who enrols now is worth ten who enrol after the crisis comes upon us. Similarly, the man who enrolled last September is worth ten who enrol to-morrow. I should like to make a special appeal to the Minister to make some provisions for these men who have been already victimised. Whether this section should be made retrospective is another matter, because retrospective legislation is not very fair at the best of times. This, however, provides an opportunity for the Minister to say what he hopes to do in regard to men who have been already victimised.
Surely the section has in fact retrospective effect?
Yes, for those who are at present serving.
Sub-section (1), lines 43 to 50, gives the section a retrospective complex, and rightly so, because if you do not give it a retrospective complex, the only person to lose would be the man who joins quickly. The person who stalls off the call and waits for some time would get the benefit of this provision whereas the person who joins quickly apparently would not be safeguarded. I should be glad to hear that 57 (1) will have retrospective effect; otherwise we are penalising people who join up in the early stages.
I shall have that matter looked into.
There is another point which I should like to put forward for the consideration of the Minister. In sub-section (1) (d) it is provided that every former employer who fails to reinstate a former employee on his discharge from military service, shall be guilty of an offence and shall be liable to a fine not exceeding £50. Under sub-section (1) (e), if the former employer is found guilty of such offence, the court may also order him to pay to the former employee a certain sum, approximately six months' pay. On the construction of the section it seems that, before the court can award an employee six months' pay, the employer must be found guilty of an offence. While sub-section (4) of the section provides that the Minister for Industry and Commerce may make regulations in respect to employers who try to evade their responsibilities under the section, it is only after an employer is found guilty of the offence that the court may order the payment of certain compensation to the employee. Who is to prosecute the employer? Is the Minister perfectly satisfied that under sub-section (4) the Minister for Industry and Commerce will prosecute the employer? Clearly the employee cannot get compensation unless the employer is prosecuted and is found guilty of the offence. It is clearly necessary that somebody should have responsibility of initiating the prosecution so that if the employer is found guilty of the offence the employee may get the compensation provided for in sub-section (1) (e). Is the Minister satisfied that under sub-section (4) the Minister for Industry and Commerce has to initiate the prosecution?
The Minister for Industry and Commerce makes the regulations and I think he also would have to take the prosecution.
Is there any provision in the section to cover the case of a man who may return physically unfit? There may be some trouble about that.
No.
Would it not be well to make some provision for a medical court? If men were on active service, a number of them might become physically unfit and if this section were operated against an employer in respect of them, you might inflict an injustice on somebody.
The state of his health will be shown on his discharge papers.
If a man joins up for the emergency period and meets with an accident, are his wife and dependents entitled to workmen's compensation as they would be if he were in private employment?
There are certain circumstances in which that will apply, provided he was on duty when he met with the accident.
In connection with this matter of a period of emergency, I should like to point out to the Minister that, last September, I think, a state of emergency was declared to exist, as a result of which large numbers of men were induced to join the Volunteers or the Regular Army. In the circumstances, and in view of the Minister's own statement, I consider that one of these men is worth ten of those who may join up to-day or to-morrow, and I think that the Minister should seriously consider making this section retrospective.
With regard to that matter of its being retrospective, surely, whether the section actually gives retrospective powers or not, its effect is retrospective. Certain men were called up in September, and a number of them have been discharged since then, but I understand that they will all be called up again and, therefore, they will be immediately affected by this. You cannot put them back into employment out of which they have since been called.
Mr. Byrne
I know of one case where a Volunteer was called up in September, and in the following December asked to be transferred to the Reserve. When he went to look for his old job, he could not get it back, and after being idle for a few months, conscientiously seeking work all the time, he could not get any work, and went back into the Volunteers.
Question put and agreed to.
SECTION 58.
Question proposed: "That Section 58 stand part of the Bill."
This section deals with restriction on recruiting for other States, and Section 5 deals with the extra-territorial application of the Act. The Minister may not be aware that some people are saying that the recruiting taking place under the present appeal is only for the purpose of getting men into the Army in order to send them to some other place. I think it would have been a wise thing in a Bill of this kind, to put in some section saying that the Army is at present being recruited only for the purpose of defending this country at home. Why would it not be possible to insert a section of that kind?
That is covered by Section 41.
In connection with Section 58, the Minister, when introducing this Bill yesterday, said that papers published in other areas will, no doubt, respect our wishes. I should like to ask the Minister how far this is going to be enforced. We could all agree with the general tenor of this section, but there is a number of very special publications that might contain appeals to persons to enlist, and while they might have a very small recruiting appeal, the deprivation of them might have a certain effect on certain persons in this country in connection with scientific, artistic, or other publications. I should like to know from the Minister how far this is intended to be regarded as an absolute prohibition of anything in a paper published abroad, for enlistment, because if so I think that the section is going to do more harm than it will do good.
This only applies to papers published in the State here.
I see.
Question put and agreed to.
First to the Sixth Schedules, inclusive, and Title of the Bill, put and agreed to.
Did you put the Sixth Schedule, Sir?
Yes, but the Deputy may ask a question on that Schedule.
I just want to ask a question, Sir. I notice that this Schedule is practically all concerned with offences on a ship, and I am wondering whether the Minister has got powers elsewhere to deal with things that might be considered analogous to a ship, such as an aeroplane, seaplane or flying boat. Are they covered elsewhere?
Yes. This is only an addition to cover the marine service which has just been initiated.
Bill reported without amendments.