Dáil Éireann debate -
Wednesday, 14 Feb 1945

Vol. 96 No. 1

Public Business. - Military Service Pensions (Amendment) Bill, 1945—Second Stage.

Minister for Defence (Mr. Traynor)

I move that the Bill be now read a Second Time. This Bill has been denounced in all moods and tenses by certain sections throughout the country long before it saw the light of day. It has been said to be contrary to the Constitution, to disregard the law of the land, to show disrespect to the decisions of the Supreme Court, and to betray a callous indifference not only to the public in general but to the Old I.R.A. in particular. The publicity given to these unworthy and unfounded allegations has prejudiced the merits and intentions of this Bill, and I must, therefore, ask the House this evening to bear with me while I point out the necessity for and the motives underlying the Bill. For that purpose I propose going back to the beginning and to outline briefly for the benefit of the House the history of the administration of the Military Service Pensions Act, 1934, which the present Bill seeks to amend.

The Military Service Pensions Act, 1934, became law on 13th September, 1934. The first task which confronted the Department was to devise a form of application for claimants which would cover the various periods of pensionable service set out in the Bill. As the Act of 1934 differed in many respects from that of 1924, the drafting of the precise form of application took a little time, but eventually it was prescribed by a regulation published on 18th October, 1934, but the forms themselves having to be printed were not available until several weeks later.

Meanwhile the most careful consideration was being given by the Government to the selection of persons who were to administer the Act. The machinery prescribed by the Act for dealing with claims was a Referee assisted by a committee of four persons described as the Advisory Committee. The Referee was to be a judge, a justice, or a practising barrister of ten years' standing, and the committee was to consist of two officers of high rank in the Forces, together with two other persons, one nominated by the Minister for Finance and the other by the Minister for Defence.

After the most careful consideration it was decided to ask a judge to leave his circuit to perform the functions of Referee and for the committee were chosen two men of conspicuous merit in the I.R.A., together with two officials of senior rank in the Civil Service. Meanwhile a secretary with staff was appointed to deal with administrative work.

The Act was passed on 13th September, 1934. The form of application was published on 18th October, 1934, and the date by which application was to be made was fixed as 31st December, 1935. The Referee and Advisory Committee, though appointed early in October, 1934, did not begin to function until 17th December, 1934. Between October and December, 1934, the Department was engaged on the preliminary work of getting things in order for the Referee and one of the problems with which it was preoccupied was, in what way should applicants be informed that their claims were not allowed by the Referee. Section 5 (5) of the Act prescribed that "the Minister may make rules regulating the procedure of the Referee", and under that section the Department published an Order in October, 1934, prescribing that where an applicant had not proved his claim the Referee would send by post a notice to him setting out the matters of fact on which he had not so proved his claim, but that he would not make his report to the Minister until the expiration of at least 20 days after the service of the notice. Such a procedure of notifying in writing the grounds of the Referee's decision would only be practicable where applications were few, but when the Referee and the Advisory Committee had functioned for a short time and had seen the rate at which applications were arriving, they found the procedure unworkable and first amended the Order by making a verbal notification sufficient, and later abolished both the verbal and the written notification. In point of fact, from the 1st February, 1935, until the 21st February, 1936, no procedure was prescribed by Order as to how the Referee was to notify applicants regarding their applications. On the latter date an Order (S.R.O. 61 of 1936) directed that the Referee should simply inform applicants whether the Act applied to them or not and should allow them at least 20 days in which to appeal against the finding. This Order still remains in force, and the only amendment of it was in 1938, by an Order (S.R.O. 58 of 1938), which prescribed the procedure which the Referee should follow when, after issuing the original notice of award to an applicant, new evidence came to hand showing that the award was excessive.

I have referred to these published statutory documents to show that even on the relatively simple question of how applicants were to be notified, the Referee was wrestling with a problem of procedure from the very beginning.

When the Referee and Advisory Committee began to function they were confronted with two other serious problems—(1) how were the claims made by applicants to be verified; and (2) what internal procedure was to be followed in adjudicating on the claims.

As regards the first problem of verification the position under the 1934 Act was far different from that which obtained under the Act of 1924. Under the latter Act verification of post-Truce service was available from documents existing in the Army and it was not difficult to verify pre-Truce service, first, because the most of the witnesses were Army officers, and secondly, because only three or four years had elapsed between the period and the date of examining the pension so that memories were fresh on the subject. Under the 1934 Act, however, an entirely different set of circumstances operated, because for one thing there was no documentary evidence on which the Referee could rely, and for another the memories of essential witnesses had not improved with the lapse of time between the passing of the two Acts.

The difficulty was, however, solved by asking the various brigades throughout the country to set up committees, to compile brigade records and to choose members who would act as verifying or certifying officers before the Referee when the applications from their particular areas were being dealt with. The verifying officers were old members of the I.R.A. who had taken a prominent part in the fight in their respective areas. They were drawn from both parties who had opposed each other in the post-Truce trouble, and they co-operated irrespective of the political and other differences which divided them. Their work was voluntary and they sacrificed their time, leisure and business in order to do their best for their comrades and to see that the claims of any genuine applicants were not overlooked.

The Referee's second problem was what procedure was he to follow in determining the applications for service certificates. That obviously depended, within the framework of the Act, on the number of applications to be dealt with. Now, at the end of December, 1934, only 204 claims had been referred to the Referee, and I have no doubt that for a period the Referee followed the strict procedure laid down by the Act. But the year 1935 was not long in progress when the Department was inundated with applications. They were coming in at the rate of over 4,000 a month and by the final date, 31st December, 1935, the Referee was faced with the colossal task of dealing with 51,880 applications.

Now, it is easy to be wise after the event. We all know now that, on a strict literal interpretation of the Act, the correct procedure was that the Referee should sit with the Advisory Committee to examine the information received before making his report to the Minister, and that he should be present when any person attended for examination as a witness. To deal with each case in that manner would have taken, it is estimated, about 70 to 80 years to complete the work, and that, of course, would be farcical as a practical proposition. The Referee could, of course, have come to the Minister at this stage and have pointed out that the strict procedure provided in the Act was impossible to operate and, in that case, we would then have asked for the legislation we are asking for now, and I have not the slightest doubt that this House would have implemented our proposals. But the Referee did not do so. Under Rule 7 of the Order published in 1934.

"the Referee, subject to the provisions of the Act and these Rules, may regulate his own procedure".

The Referee was a judge of the Circuit Court and he considered that, within the provisions of the Act, he could allow the committee to take evidence either as a body or in pairs and that he could then, on the evidence received, determine the claim of the applicant, and it would appear that at an early period this was the procedure actually followed.

Whatever was the procedure adopted in particular cases, the fact remains that at the end of 1935 the Referee had reported on only 1,065 cases. The same rate of progress obtained during the first eight months of 1936, and in August of that year the Referee was asked if the work could be expedited by the appointment of four interviewing officers. The idea behind the proposal was that if the advisory committee, either as a body or as individuals, were relieved of or helped in the work of interviewing applicants, the output of reports could be increased enormously. The Referee saw no objection to the proposal and the officers were engaged in this aspect of the work from about October, 1936, until April, 1942. Two of the officers chosen had been active members of the I.R.A. and the others were civil servants with long experience of administration. Where, therefore, the interviewing officers were not actually biased in favour of the applicants, they were men whose experience would enable them to bring out every favourable feature in the applicant's claim, while the informal atmosphere in which the evidence was taken considerably assisted the applicant. Between the Referee himself, the advisory committee and the interviewing officers, no less than 30,245 persons were interviewed regarding their claims between 1934 and 1943.

Before April, 1939, only 64 rejection notices had been issued, but meanwhile the files had been scrutinised and any claim which did not seem on its face likely to succeed was put aside for rejection. Towards the end of 1938 an arrangement was made with the brigade committees whereby before the rejection notices were issued the committees would be informed 28 days beforehand of the names of the persons concerned, so that if necessary the committees could make representations to the Referee about any person whose claim they considered to warrant further consideration. I think this was a wise plan. On the one hand, there was no use putting applicants to the expense of coming to Dublin and encouraging false hopes, and, on the other, it prevented the Referee from overlooking any point in the applicant's favour. Between 1939 and 1943 the brigades were notified of 45,416 rejections. This arrangement was, it will be noted, additional to the ordinary statutory notice of rejection in which the persons concerned had at least 20 days in which to appeal.

Up to the end of January, 1943, the Referee had issued 11,329 qualifying and about 48,538 non-qualifying reports giving all concerned 21 days in which to show cause why the report should not be made to the Minister. Against the qualifying notices there were 2,158 appeals and, against the non-qualifying notices, there were 23,238 appeals. In addition to the appeals made on the 21 days' notice, there was another series of appeals made to the Minister on grounds of additional evidence not available prior to the making of the report becoming available. There were about 12,000 such appeals and of that number 922 were referred to the Referee for review. The House can see for itself the amount of work involved in dealing with all this mass of material.

I have now described at some length the procedure adopted in determining claims for pensions under the 1934 Act, and I have outlined briefly the work of the Referee, the advisory committee, the interviewing officers, the verifying officers and the brigade committees. What I should like to stress at this point is that persons chosen to constitute the administrative machine prescribed by the Act were weighted in favour of the applicants. The Referee was a judicial personage whose only purpose was to administer the law, irrespective of its consequence and the two civil servants on the advisory committee were acting under an enabling statute to administer justice; but the other members were I.R.A. officers whose function it was to see that credit was given, within the ambit of the Act, where credit was due. At least two of the four interviewing officers had active, indeed prominent, service with the I.R.A., and all the verifying officers from the 82 brigade areas were bent on extracting the last ounce of credit for the applicants of their areas.

Unless the procedure adopted was manifestly unjust—and there is not one tittle of evidence to that effect; indeed, all the evidence points to the contrary —I cannot conceive any administrative machine so heavily weighted in favour of applicants as was that operated under the 1934 Act. The date for receiving applications was extended on several occasions, but the position to date is that there have been 60,131 applications. Out of that number, 11,577 succeeded in obtaining service certificates and the remainder were refused.

Such is the final result of the past ten years' work on the administration of the 1934 Act. Interpreted financially, the cost of the Referee and advisory committee with administrative staff is about £130,000, and payments on foot of awards made by the Referee total, to the 31st December, 1944, £2,561,071.

Mr. McGilligan

That is the total sum?

Mr. Traynor

That is the total sum paid over the period.

Mr. McGilligan

Could the Minister say what is the annual amount?

Mr. Traynor

About £320,000 odd.

Mr. Maguire

Does that sum include the pensions payable under the earlier Pension Act?

Mr. Traynor

That amount is in respect of the 1934 Act—that is all we are discussing. This brings me to public events of more recent date. For eight years since the Referee began to function the procedure he adopted was not challenged by anyone. But towards the end of 1942 a person who had received a qualifying award, but who was not satisfied with the award, sought, and obtained in the High Court, a conditional order directing the Referee to bring in the report and to show cause why it should not be quashed. This particular case involved questions both of procedure and interpretation. In 1943 62 other persons, and in 1944 11 other persons, sought and obtained similar orders, but in these cases the question at issue was mainly one of procedure. Eventually two cases were tried and the High Court refused to make the conditional orders absolute. The court held that, although the procedure followed was not strictly in accordance with the provisions of the Act, no injustice had been done to the applicants. The prosecutors appealed to the Supreme Court and that court decided that the reports should be quashed mainly because the Referee did not sit with the advisory committee to examine the information received in respect of the two cases and also because he was not present when the persons attended for examination. Following this decision, the High Court made absolute certain conditional orders in respect of which applications to that effect were made.

Now, what is the effect of the court decision? Here I want to emphasise one point. The courts expressed no opinion whatsoever on the merits of the applications. They simply said that in determining them the Referee had not followed the procedure laid down in the Act, but they did not say that, had the Referee followed the correct procedure, the applicants would have succeeded in obtaining certificates.

The immediate effect is that the cases in respect of which conditional orders have been made absolute by the court must be reopened by the Referee and heard anew. In so far as these cases are concerned, we are honouring the decision of the courts, and there is no intention, expressed or implied, in this Bill of interfering with judicial decisions regarding these cases. What this Bill is concerned with is the implications of the court's decision, and this House must face up to these implications.

In the first place, we are concerned with the pensions already under payment. There are 11,577 such pensions, and, as I have said, they have cost, up to the end of December 1944, the huge sum of £2,561,071. Now there is no doubt that the correct procedure was followed in some of those cases, but we do not know the exact cases in which it was followed, and there is practically no way of determining them with certainty. Hence a serious doubt exists as to the legality of all pensions under payment, and to remove that doubt the only alternative to this Bill is to suspend all payments of pensions and to reinvestigate all the cases. Then if we follow the strict procedure, these cases will, it is estimated, take about 16 years to complete. Would any member of this House choose such an alternative? Short of suspending all payment on foot of awards already made, I suggest to the House that some such Bill as this under consideration is necessary if we are to continue payment.

Take now the non-qualifying reports issued. These number 48,554. Here the alternative to the Bill is to stand still and to allow the Referee to be flooded with conditional orders and the State to stand the expense of those that would succeed. Any applicant who could show that he attended for examination and was not heard by the Referee personally, could obtain an order at the State's expense, and his case would have to be heard anew. The claims of those who had received qualifying reports would naturally get priority, so that those who did not qualify would have to wait their turn. When, therefore, the Referee had spent some 16 years deal ing with persons who had qualified, he would have to direct attention to those who had not qualified. The time which the investigations would take would depend on the number of orders obtained, but if only 20 per cent. of the rejected cases were re opened, it would take at least another ten years to complete their investiga tion. Could any Government stand over a proposal to spend at least 26 years, at an estimated administrative cost of £340,000, in investigating claims which have already taken ten years to determine at a cost of £130,000?

It may be said that this difficulty of time could be overcome by appointing additional referees and advisory committees. But this solution is not as simple as it looks. For one thing the administrative cost would be higher in proportion to the number appointed, and for another we would have varying standards of awards all over the country with increased vexations and grievances. In fine, taking everything into consideration, I put it to this House that the only alternative to this Bill, so far as it concerns the procedure of the Referee, is administrative chaos.

So far I have only spoken in general terms of the reasons necessitating the Bill, and I have not referred to its specific provisions. The section which deals with the problem arising out of the Supreme Court decision is Section 2. On a first and causal reading of the section, its provisions would seem drastic, but that first impression is proved false when we recollect that all the points of procedure validated do not apply to every case, but that different points apply to variously differing types of cases. The Referee, as I have shown, had very many different types of cases to consider, and he had to vary his procedure in dealing with them. Seven sub-sections of Section 2 deal with those different forms of procedure. They look backwards and declare, in effect, that the Referee was right in varying the procedure adopted, and, as I have already said, he was right in fact if not in law because there was no other practical way of dealing with the problem.

The Supreme Court decided that the procedure of the Referee in the two cases before them was not in accordance with the Act, principally because he did not sit with the Advisory Committee before making his report, but also because he was not personally present when witnesses attended. Sub-section (1) of Section 2 provides that it was not necessary for the Referee to sit with the committee before making his report and the deletion of the words "before the Referee" by sub-section (2) provides that the applicant may make his case not necessarily before the Referee in person.

There were 60,131 applications under the Act and it is quite obvious that if the work of dealing with them was to be accomplished within a reasonable period of time the Referee and the committee could not sit together to consider each case. In point of fact only a small proportion of the cases were dealt with in this way. Again, no less than 30,245 applicants were granted an opportunity of giving their evidence before either the Referee or interviewing officers and it is equally clear for the same reason that no Referee could hear each applicant in person.

The provisions of sub-sections (3), (4), (5), (6) and (7) deal more directly, though not necessarily exclusively, with points made by counsel during the court proceedings. The object of the Bill here is not only to cover the points decided by the Supreme Court but also to cover other points of procedure adopted by the Referee for the expedition of claims so as to ensure that these points will not again be the subject matter of conditional orders.

It was pleaded, for instance, in the courts that in dealing with applicants and their witnesses the Referee did not summon them, or did not hear them, or was not present when they were being heard, or that he allowed either members of the committee or interviewing officers to hear them without being personally present himself. Sub-sections (3), (4) and (7) declare that it is not necessary to follow such a procedure and in thus validating or removing all doubts about what the Referee actually did, these sub-sections really cover the vast majority of the applications. Of the 29,886 applications dealt with without the applicant being afforded an opportunity of giving evidence, I should like to say that an examination of their claims and supporting certificates indicated clearly that even assuming the value of these claims and statements in full the Referee felt that the total value of the service rendered was not such as would warrant the issue of a military service certificate. To hear or to summon such persons or their witnesses would have been a waste of public time and money, and would have put the persons themselves to fruitless and unnecessary expense. In rejecting these cases outright, subject to a 21 days' notice for appeal, the Referee had a good precedent in the 1924 Act where 7,854 applications were rejected departmentally without any reference to the board of assessors because they were clearly cases to which the Act did not apply. In fact, in this respect, applicants under the 1934 Act received greater consideration than those under the 1924 Act because brigade committees had an opportunity, and exercised it in many cases, of asking the Referee to withhold his decision until representatives of the committee were afforded an opportunity of explaining the applicant's service in full, with the appropriate background.

But sub-sections (3), (4) and (7) cover not only the outright rejection cases but also a large proportion of those actually summoned and heard. These numbered 30,245. The Referee could not personally interview such a number and he delegated the task, as I have already said, to the members of the committee and to the interviewing officers. These officers carried out the vast majority of the interviews, and the Bill provides for the Referee authorising or permitting them to do so. Here, as elsewhere, we must remember that the Referee had the help of the verifying officers in many cases while the remaining claims in this category were rejected only after assuming the value of the evidence in full as falling short of the standard required for a military service certificate. Moreover, as regards witnesses and references generally, it must be noted that the Referee had by force of circumstances to rely on the testimony of the verifying officers and that unless he did so there would never have been. any finality in the work of investigation. That, however, did not in cases of doubt or of conflict of evidence, preclude him from calling on other witnesses and references if he deemed it fit to do so.

The purpose of sub-section (5) is really to protect verifying officers. Their testimony was given on the strict understanding that their confidence would be respected by the Referee, and, if there were any breach of that confidence, it is clear that they would refuse to testify further. That confidence would have been broken if applicants were informed of the information they had given or if certain applicants were allowed to be present when the verifying officers were being examined, or if, knowing that their claims had not been supported by the verifying officers, they were allowed to tender rebutting evidence. This sub-section does not mean that the Referee never informed applicants of the information received or never allowed them to be present with verifying officers or never allowed them to tender rebutting evidence, but it does mean that in particular cases, where he had good and sufficient reasons for doing so, it was not necessary for him to inform the applicant of the information obtained, or to allow him to be present when the verifying officers were present or to allow him to tender rebutting evidence when he had already made up his mind on the merits of the claim.

Sub-section (6) means that the Referee, in deciding a claim, could take into account any evidence or information obtained from sources other than that from verifying officers, witnesses or references, provided that he deemed such information or evidence relevant to the particular claim. Its object is to ensure that the Referee, in assessing the merits of any claim, will not be tied to the rules of evidence or any formal procedure.

Sub-section (7) simply amplifies the meaning of sub-sections (3) and (4). Sub-section (8) makes the preceding sub-sections retrospective to the passing of the 1934 Act on 13th September, 1934. For the reasons already given the necessity of this retrospectivity is obvious.

Sub-section (9) deals with the cases in which absolute orders have been made directing the Referee to bring the reports into court for the purpose of being quashed. Paragraph (a) of this sub-section provides that such cases must be investigated anew and that, in doing so, the Referee must follow the procedure laid down by the Supreme Court and the strict literal procedure set out in the 1934 Act. This shows that we are not setting aside the decisions either of the High Court or of the Supreme Court, but we are respecting such decisions in the cases which have been decided.

Paragraph (b) provides that, if a person were in receipt of a pension on foot of a favourable report and if such report were quashed by an order of the court, then any payments of pensions made in respect of the favourable report so quashed shall be treated as payments in respect of a second favourable report, if granted.

Section 3 is a corollary to the preceding section and provides that in dealing with reports referred for review the Referee could follow the same procedure as he did when dealing with applications for service certificates. There are two kinds of references according as they are made under Section 8 before the service certificate issued or under Section 13 of the Act after the certificate has issued, and this section merely prescribes that in both cases the Referee may follow the procedure he used in dealing with the original application.

Section 4 of the Bill deals with a subject which is allied to that dealt with in the preceding sections. It refers to the acceptance of appeals to the Minister on grounds of additional evidence. As the 1934 Act stands at present, such appeals could go on indefinitely and the machinery for dealing with them should be kept in existence. That, obviously, is undesirable, for there should be some finality in the appeals as there is in original applications. I have already pointed out that there have been about 12,000 such appeals and that 922 had been referred to the Referee. By this section the Minister now will divest himself of the power to receive appeals after 1st January, 1946. Any appeals received before that date will be considered, but after that date no other appeals can be received. Taking the number of appeals already dealt with, and seeing that applications may be made up to 1st January, 1946, I suggest to the House that the amendment is reasonable and will not deprive any man of an opportunity of making good his case if he has any.

From what I have said, I think it is clear that all genuine applications under the Act were dealt with not only equitably but even sympathetically, and that all claims were dealt with so expeditiously that the strictly legal procedure prescribed by the Act had to be abandoned in favour of a more practical and less costly procedure which ultimately has necessitated the present Bill. All the original applications have been determined, and the only claims now outstanding are the quashed reports, together with a few cases of appeal on grounds of additional evidence. Applicants who still feel aggrieved have until the 1st January, 1946, to appeal, provided that they can produce better evidence hitherto unavailable than they produced when making their original claims. This Bill is, therefore, perfectly fair to all concerned. It has not been suggested anywhere that the Referee was unjust or that the advisory committee was unfair.

We are not in this Bill interfering with the Constitutional rights of anybody; we are not depriving anyone of any legal right established in due course of law; we are not disrespecting the decisions of the courts but are honouring them in every respect; we are protecting the general taxpayer by ensuring that the money spent during the last ten years in administering the Act has not been in vain, and we are safeguarding the interests of pensioned I.R.A. men by seeing that the pensions which they have received will continue to be paid. The Bill simply deals with a question of procedure and of procedure alone, and it asks the House to declare that the procedure used by the Referee was good and valid, because there was no alternative if the administration of the Act was to be completed within the lifetime of the persons who were entitled to pensions.

May I, therefore, suggest what I have already mentioned earlier in the statement, that if the Referee, through the Minister, had sought these powers in 1935 when he first discovered the impossible position with which he was being faced by reason of the tremendous volume of applications which were pouring in, this House would, unhesitatingly, have granted the necessary authority not alone from the point of view of expedition but also from that of sound commonsense.

Mr. Norton

I move:—

To delete all words after the word "That" and substitute therefor the following words:—"Dáil Eireann declines to give the Bill a Second Reading pending (a) the setting up of a Select Committee to consider and report on the most equitable and expeditious method of dealing with claims for pensions from members of the Old I.R.A. and kindred organisations; and (b) the consideration by Dáil Eireann of the report of such Select Committee."

As far as one can gather from the statements and letters which have appeared in the Press, the main case made by the Government spokesmen for the introduction of this Bill is that it is necessary in order to validate the provision of pensions under the 1934 Act. Apparently these spokesmen are anxious to get some solace for their action in voting for the measure because of the belief that the introduction of this Bill is necessary. One need only examine the matter with even the most perfunctory care to realise that the introduction of the Bill is completely unnecessary for that purpose. Any attempt to assert that it is represents the position in a most incorrect manner and that contention will not bear any examination from any legal point of view. I take it that the present position is that all the reports made by the Referee are valid unless quashed by the High Court or Supreme Court; that all the decisions made by the Referee were valid until certain of them were quashed by the Supreme Court. The position, therefore, is that those which have not been quashed by the Supreme Court still have the validity which they had before these cases were heard by the Supreme Court. In that respect, the position is just the same as it was before the recent Supreme Court decision on the claims which were adjudicated upon by that court.

It does not seem to me, it certainly does not seem to legal people closely associated with these cases, that any legislation is necessary to legalise the payment of pensions based on reports made by the Referee under the 1934 Act. The Government, of course, could go to the courts and move there for an order of certiorari and thus ask the High Court or the Supreme Court to quash decisions which had been given by the Referee. It is very doubtful, of course, whether the Government could, in all morality, embark upon a course of that kind. But, even if the Government elected to adopt a course of that character, it is quite unlikely that the Government could succeed in the course when it would be pointed out that the Government were relying for the success of their application on their own failure to comply with the Act and on the peculiar methods of administration which they applied in connection with the Act.

The position is that every applicant who was granted a pension under the 1934 Act had that pension granted to him by the Minister for Finance. That pension was sanctioned by the Minister for Finance. These pensions have been paid over a period of years. Having accepted that liability and having implemented that liability, the Government can scarcely endeavour now morally, either before the country or in the courts, to repudiate a liability which they voluntarily and without duress of any kind assumed for themselves. To talk of this Bill as being necessary for the purpose of continuing pensions to those to whom pensions have been granted is a flimsy pretext to justify the introduction of a Bill of this character.

Let us look at what we are doing in relation to the original 1934 Act. The 1934 Act provided machinery for the consideration of claims for pensions and that machinery followed the usual pattern of Acts granting pensions. The Act recognised that the granting of pensions for life was a matter open to grave abuses and that scrupulous care should be taken in the administration of any Act of this sort. The Act provided the following safeguards. It provided that there should be a referee, who was to be a judge or a barrister of ten years' standing, to determine applications. It provided for an advisory committee of four persons to sit with the Referee. It provided that the onus of proof rested on the applicant and that the applicant should have the liberty to offer such evidence as he might consider necessary to discharge such onus. It gave the Referee the same powers as a High Court judge to summon witnesses, to administer oaths, and to deal with cases of contempt of court.

What does this Bill do? The House will have noted the safeguards provided in the original 1934 Act. This Bill has been introduced for the purpose of wiping away every single safeguard provided by the 1934 Act. This Bill provided that the Referee need not make any inquiries from anybody; need not hear any applicant personally; need not receive representations from an applicant or anybody else; need not summon anyone to give evidence; need not inform the applicant of any evidence that he has received; and need not allow the applicant or anyone else to give any evidence. The Advisory Committee need not be complete and, instead, three members may form the Advisory Committee. That committee of three need not sit with the Referee or, indeed, need not sit at all.

That is the type of Bill we are substituting for the Act of 1934 into which the Dáil felt it necessary to import such essential safeguards. The net position as regards the safeguards provided by the 1934 Act and the present Bill is that the Referee can report for or against a person without any inquiry whatever or without even telling the Advisory Committee of what he intends to do. The applicant may be refused a pension without any opportunity whatever of tendering any evidence in his own behalf. I suggest to the Minister that, if he searches the records of legislation here or elsewhere, he will find that this is the first and only occasion on which such an arbitrary power to grant or refuse pensions has been given to a single person.

The Act of 1934 contemplated an entirely different procedure from that which is to be followed under this Bill. That Act contemplated a situation in which there would be a Referee, who would be a judge or a barrister of ten years' standing. It contemplated the establishment of an advisory committee of four persons, two of whom would be Old I.R.A. officers of high rank; one a representative of the Department of Defence, and one a representative of the Department of Finance. The function of that committee, as provided for very definitely in the 1934 Act, was that it was to sit with the Referee and to assist and advise the Referee in the consideration of applications. Having, over a long number of years sat with the advisory committee, the Referee is now being empowered in this Bill to disregard entirely the existence of the advisory committee, if he elects to do so, notwithstanding the fact that in 1934, when the Act was going through the House, it was then considered necessary to set up an advisory committee to assist and advise the Referee in the consideration of applications.

It is interesting to examine the position of the advisory committee in relation to the operations of this Bill. It is quite clear from an examination of the 1934 Act that the committee was to represent different interests. It was understood that the committee might have different points of view but, at all events, it was to sit as a body and to sit with the Referee in the consideration of applications. The Government had two representatives there, who might be said to be the watchdogs of the public purse. The Old I.R.A. men had two representatives there— presumably their function was to ensure that full consideration would be given to the claims of applicants. But the Act definitely provided that the Referee was to make the report and his function was to act as a judge in relation to the consideration of applications and in his relationship with the advisory committee.

We have this Bill now and we have had the recent litigation in the courts because of the fact that the Referee did not carry out the statutory functions imposed upon him by the 1934 Act. I suggest to the Minister that he must know that it was never intended that applications for pensions submitted to the Department of Defence should be heard by the Government representatives on the advisory committee, alone; it was never intended that they should be heard by the Old I.R.A. men's representatives, alone. The Act, especially by reference to the Referee's powers regarding the attendances of witnesses, together with the provisions as to the taking of evidence, makes it perfectly clear that the Referee was to act judicially in the whole matter and to hear the evidence himself.

The provisions of the 1934 Act when it left this House made it clear that they were designed to ensure that the Act would operate fairly and would be impartially administered in judicial fashion. What were the complaints before the court? In the cases which came before the court it was complained of in particular—and admitted —that the Advisory Committee did not sit with the Referee, that only some members of the Advisory Committee, in the absence of the Referee, heard the evidence, that the Referee did not hear the evidence himself at all and that if evidence was received by the Referee and by the Advisory Committee, or by any of its members, adverse to applicants' claims, the applicants were kept in the dark as to the nature of this evidence and were given no opportunity of controverting it or of testing it by cross-examination.

Having examined the cases at length, having heard counsel on both sides, the court held that the Referee's findings were a judicial act and that he was bound to hear the evidence personally and bound under the statute to sit with the Advisory Committee. But the Referee had not done so. The court found that the Referee, in fact, had not complied with the provisions of the Act, that he had not acted judicially and that he had, in fact, exceeded his jurisdiction.

The Dáil, when it was considering the Act of 1934, felt it necessary to put in the safeguards which are now being torn up by the introduction of this amending Bill. The Dáil then felt that it was necessary that there should be a committee functioning with the Referee, that the Referee should act as a judge and that he should hear evidence and determine the claim for compensation on the basis of the evidence submitted to him. It is because these provisions were disregarded that it is now proposed to introduce retrospective legislation. These provisions have been disregarded for a long number of years without this House having been given any opportunity whatever of considering the question of substituting a new type of machinery for that set out in the 1934 Act and to which, apparently, objection is now taken by the Government on the grounds that it is an inconvenient and cumbersome machinery.

The effect of this Bill, of course, will be to preclude persons who claim that an injustice has been done to them from having the case properly investigated, because the almost despotic powers which are granted to the Referee ensure that the Referee can decide anything he likes: he may consult the applicant; he may decline to consult the applicant. He may call the applicant to give evidence; he may decline to call the applicant to give evidence. He is not obliged even to consult the original advisory committee, which was considered to be an essential safeguard in the 1934 Act. But if injustice has been done by the adoption of the procedure set out in the Minister's statement over a long number of years, a procedure which has been held to be illegal having regard to the terms of the 1934 Act, surely this House should not be prevented from rectifying that injustice and surely the injustice ought not to be allowed to remain, merely because, over the past ten years, the Referee failed to comply with the terms of the Act which he was appointed to administer.

We did not get any very convincing explanation from the Minister to day of the failure to observe the safeguards provided by the 1934 Act. Certainly we got no explanation from the Minister as to why this House was not consulted over the past ten years when the Referee, apparently, took it upon himself completely to disregard the safeguards which were inserted in the 1934 Act for the protection of applicants for military service pensions. The Government cannot say that they were unaware of the departure from the Act and the complete disregard of the provisions of the Act, because during that period there were two representatives on the committee, one from the Department of Defence and one from the Department of Finance, both of whom must have been familiar, as guardians of the public interest in the matter, with the fact that the terms of the Act under which they were functioning obliged them to sit with the Referee, whereas in fact, they functioned on their own, independent of the Referee and he of them, and completely ignored the essential safeguards provided in the statute.

There is probably no subject in respect of which there has been more wild guessing than as to the amount of time which it would take to rehear cases of applications for military pensions. A statement appeared in the Press the other day that if the cases had to be reheard it would take 86 years to rehear them. State counsel told the court it would take 43 years to rehear them. The 86 is apparently got by taking a number and doubling it. The Minister brought in a new figure to-day. He told us it would take about 70 years to rehear the cases.

Dr. O'Higgins

It would take 700 with the present Minister.

Mr. Traynor

Between 70 and 80 to rehear all cases.

Mr. Norton

Counsel says 43, the Minister says 70 and the Press says 86. One can choose between them. I want to contrast these astronomical figures with the position under the 1924 Act, so as to bring some reality into the whole business. The 1924 Act set up a board of assessors to consider claims for military pensions. The board consisted of three persons—a district judge, the late Deputy Eamon Duggan, and then Deputy Fionán Lynch. That board considered applications submitted to it. They decided at the outset that there would be an individual examination of applicants, on oath, in each case. Not only did they decide to deal with all the applications submitted to them, not only did they decide to have an individual examination, on oath, but, in addition, the board of assessors moved around the country and held sittings at no less than 38 different centres. The board functioned for less than four years and in that period dealt with over 21,000 applications and 1,000 cases which were referred back to the board on appeal. That was not a bad performance— 22,000 cases in four years. I find it difficult to square those figures with the periods of 43, 70 and 86 years which have been bandied about in connection with the rehearing of the cases concerned in this Bill. It is very interesting to note, too, that not once were the findings of that board challenged in the courts, although it was as open then as now to persons to challenge the findings of the 1924 Board of Assessors. Further, too— and this is important—while there has been violent controversy and disagreement about the definition of "active service" under the 1934 Act, there was not a fraction of contest as to the interpretation of "active service" under the 1924 Act. That is what you find when you come to consider the controversy that has arisen over that term under the 1934 Act.

If one wants to get a picture of the functioning of the 1924 Act as compared with the 1934 Act, it can probably be got in no better way than by quoting one of the cases which came before the courts recently. The 1934 Act and its administration are best illustrated by the procedure followed in the case of McCarthy, one of the applicants before the courts. In April, 1935, McCarthy sent in his application and nothing happened for four years. In January, 1939, McCarthy came to Dublin from Cork and was questioned by a civil servant, in the absence of the Referee and the Advisory Committee. Evidently this was a new conception of the judicial functions of the Referee. In October, 1941, nearly three years later, some evidence was heard by some members of the Advisory Committee in connection with his application. The nature of this evidence was not made known to McCarthy, the applicant for the pension. In May, 1942, six months later, some more evidence was heard by some members of the Advisory Committee. The nature of this evidence was, likewise, concealed from McCarthy. In October, 1942, after another six months, some more evidence was again received by some members of the Advisory Committee. Again, McCarthy was not informed as to the nature of the evidence. In December, 1942, McCarthy's application was refused.

The position, therefore, was that McCarthy put in an application for a pension in 1935. Four years afterwards he was called to Dublin and questioned by a civil servant, in the absence of the Referee. Evidence was taken about his case between 1941 and 1942. McCarthy knows nothing whatever about the evidence which was tendered to certain members of the Advisory Committee. He does not know what element of malice was in it; he does not know what element of unrealiability it contained; he does not know in what way it was cooked. He could not examine it and, having been kept in the dark about the evidence tendered, his application was refused. I doubt if the Government would have tried, in 1934 or at a later stage, to justify the hearing of a claim for a pension by an Old I.R.A. man, by methods of that kind—the submission of an application, the applicant questioned by a civil servant, evidence taken without the knowledge of the applicant, and the claim disallowed without the applicant having been provided with an opportunity of examining the evidence, testing its credibility, and submitting rebutting evidence, if necessary.

This motion seeks to have a select committee set up to consider and report on the most equitable and expeditious method of dealing with claims for pensions by Old I.R.A. men. I feel sure the House desires that applications from Old I.R.A. men should be treated fairly and equitably, and, knowing the difficulty of submitting schemes at this stage in respect of activities which go back into the somewhat misty past, that sympathy and understanding will be extended to them in the presentation of their claims. This Bill does not extend any sympathy or understanding to these people, and the most remarkable part of the Bill is that these provisions have been violently opposed by a number of separate Old I.R.A. associations who, no matter what the separate character of their existence may be, are at least in agreement when it comes to opposition to the provisions of this Bill and to the effort being made to set aside the rights of applicants to go to the courts for a measure of justice when the Referee has trampled on the provisions of the 1934 Act.

Many of the people associated with these Old I.R.A. associations, and many of those opposed to the introduction of this legislation, are not themselves interested in pensions. Many of them merely want an acknowledgment of their active service in the Old I.R.A. and many of them protest vigorously against the construction of "active service" which denies them an opportunity of securing that acknowledgment of their service in other years.

This House is being asked by this motion to set up a select committee, presumably representative of all parties, to consider and report as to the best means of dealing equitably and expeditiously with these claims for pensions. One cannot imagine why there should be any Government objection to the adoption of that course. This motion seeks to enable the House to consider the position which has been created by the action of the Referee, with or without the Government's connivance, in departing from the provisions of the 1934 Act. It does not indicate the methods to be adopted in order to deal with these claims equitably and expeditiously. That, properly, is a matter for examination by the select committee, on which all parties can have representation. If the Government see difficulties in the way of setting up machinery of a character substantially different from that under the 1934 Act, or substantially different from the machinery in the present Bill, then the Government will be entitled to place these objections before the committee so appointed, but members of the committee who do not want to do things in the smash-and-grab fashion contemplated in the Bill will be empowered, as members of the committee, to put before it certain alternative machinery for dealing with claims of this character. It is not impossible to get, in a representative House of this character, persons who will be willing to serve on a committee of this kind, persons who have had administrative experience, persons who are not unacquainted with the problem to be dealt with and the necessity for the adaptation of suitable machinery to hear applications.

I will conclude by recommending the House to support the motion in the hope that, by the establishment of a select committee, we can devise a piece of machinery which will deal with claims from Old I.R.A. men sympathetically, understandingly and expeditiously, and thus remove what must be a source of burning indignation so long as the provisions of the 1934 Act are not respected by those charged with its administration—an indignation which will persist if the methods to be used in the future resemble the very unsatisfactory methods and the almost despotic powers which are given to the Referee under the Bill before us to-day.

Mr. Davin

I formally second the motion.

Dr. O'Higgins

I must confess that it was with a feeling of national humiliation that I listened to-day to the Minister. Never in my experience have I listened to such a miserable apology for ten years' incompetency and ten years' bungling. It was no wonder the Minister came to the House with that hangdog expression, with shame in his very demeanour, to stand over a measure such as this which any person with a sense of decency must definitely regard as a tricky and dishonourable measure, dictated by the mentality of bureaucrats to a Minister who, on his own statement, has no gift for administration and no sense of Departmental control. The case, such as it was, the miserable case, made by the Minister, was supported by such a litany of fantastic figures and fantastic statements that no seven-year-old child——

Mr. Traynor

Set out to disprove the figures.

Dr. O'Higgins

What the Minister proved, if he proved anything, was that, through stupidity, his predecessor brought in an Act which was definitely unworkable and which would take 71 years to work if its terms were complied with. Is that the spirit of one colleague to another—to pass the buck, to lay the blame on another, and to take ten years to find out that the Act which he was administering, according to himself, could not be administered? The Minister sat idly and silently for ten years over an Act which laid down certain functions to be carried out and certain duties to be done, and he tells us now that if they endeavoured to comply with that Act, it would take 71 years to deal with the applicants. Either the first Act was the birth of a mountain of stupidity, or the Minister was very excessively stupid to take ten years to discover it.

In a nutshell, what are we asked to do to-day? We are asked to do something which, in the national sense, is definitely dangerous and, in the Parliamentary sense, definitely unfair. Let us all get away from these wild statements as to how many years it would take. Under an Act passed before the 1934 Act, 25,000 pensions were issued in four years and every applicant was dealt with as the Act laid down and heard by a member of the board.

Mr. Traynor

And what about the other 8,000?

Dr. O'Higgins

The Minister took an hour to say nothing except mislead the Dáil and that misleading was definitely read from beginning to end. If the Minister had any statement of his own to make, he had an hour and a quarter in which to make it.

Mr. Traynor

Will the Deputy set out to disprove the figures and the statements? He is not doing it. He is pouring out plenty of abuse, but he is not disproving the figures and statements.

Dr. O'Higgins

I am setting out to advertise the statements and the figures. In that way, I am certain I am doing a definite disservice to both Minister and Government. They passed an Act ten years ago which laid down certain terms to be complied with and we are now told that it was unworkable and that if they endeavoured to work it it would take 71 years to deal with the applicants. That is the Minister's statement.

Mr. Traynor

That is correct; I am not denying that.

Dr. O'Higgins

It took him ten years to find that out, and, during that period, he covered up the incompetency of the Act by engaging in illegalities to the cost of decent people up and down the country. Now, at the end of ten years, when an appeal is made to the courts for justice, and when justice is meted out by the courts, he comes in here with a measure and says that they will not get justice, that the decision of the courts will not be complied with. He quibbles about it by saying that, in the few cases of those whose names were attached to the court cases, he will honour the court decision, but will trample on that decision in so far as it applies to thousands of others who subscribed by their bodily effort and by their finance in having test cases taken in court. It is about as shabby a thing as ever was done to a team of men who deserved better from the Minister and all the rest of us.

I wonder what is the opinion of the Minister for Justice on this? In latter years, it has been fashionable for Ministers opposite to go bleating around the country about the necessity for respect for the law, for upholding the firm tread of the law, and for respect for the institutions of the State. Anybody reading these bleatings and reading this Bill would sense nothing but hollow and contemptible hypocrisy in every phrase they uttered. There is one man in that Ministry who really desires that the people of this country shall have respect for the institutions of the State, respect and honour for the law, that is, the Minister for Justice. What is his opinion of this Bill? Do you think that is the way to breed and to cultivate respect for the law? Do you think this kind of tricky practice, which is possible only because of a dumb majority, is the way to cultivate respect for Parliament in the country?

These people, smarting under what they considered to be a sense of injustice, believing firmly and intensely that their services entitled them to pension and believing that a Bill passed by Parliament was on the Statute Book which laid down the machinery by which their claims would be investigated, go before that machinery to exercise their rights under that Bill and find that the machinery outlined is not being utilised, that the benefits of that machinery are being denied to them. They appeal to the Minister for Defence and the appeal falls on deaf ears. A poor organisation such as that then tries to get together sufficient funds to go into the highest court of the land, over the head of the Minister, to look for justice. In bringing that case, certain sample names were attached. They might have been X, Y, A, or B. Certain names were attached and the court found that the Minister and his Department were wrong over a long term of years, that these poor humble folk were right and that the law entitled them to what they asked. The Minister then comes in here with a Bill which will give what is asked only to the people whose names were attached and which will deny it to all their comrades who are as much parties to it as those whose names were attached. He tells us: "We are not repudiating the courts. We are not depriving anybody of his rights." Does the Minister think he is dealing with a Parliament of boobs? Does he think he is dealing with people who do not know what is what? We would respect him if he came in here boldly and bravely and said: "I am denying the right under the existing law of tens of thousands of people throughout the country. I am giving it to the very minimum number of people that I am compelled to give it to and I am denying it to all the rest." These are the facts and there is no getting away from the facts by all this laboured argument, fantastic figures and absurd statements which merely condemn the Minister deeper and deeper in the public estimation.

We have been told by the Minister that the mere administration of the Act which we are amending cost the taxpayer £12,000 or £13,000 per annum over the last nine years. That is the sum of money that was poured out annually to commit illegalities day after day, poured out not to comply with the duties but to dodge them and to evade the functions, attached by law and written Act to that particular administration. What are we being asked to do at the end of ten years after so much public money has been wasted? Let us appreciate fully and frankly what we are being asked to do in a State that is 22 years old, a State that was built up on caution with regard to public finance and a State which, no matter what Government was in office, has not utilised public money except in a way approved of by Parliament and definitely above board. In order to cover up ten years of incompetent bungling and illegalities, what are we being asked to do? The Minister tells us that the only way that he can handle a Pensions Act inside of 71 years is to give him authority to appoint a nominee who will sit in a back room and give pensions to whoever he likes, without hearing any evidence and without consulting anybody, a nominee who will deprive anybody else he likes of a pension. That is supposed to be the new 1945 standard of public finance. If such a thing occurred in a banana republic, where they had no experience of public finance, one would not be surprised. If the Minister has no other way of dealing with a simple Act than the way he has suggested, then he should not expect Parliament, which after all is responsible to the people, to stand over the application he is making or the fantastic statements with which he has supported it.

This particular measure is called an amending Act. Even the name of it is wrong. It is not an amending Act. It is a completely new one from beginning to end. It wipes out completely the Pensions Act passed here ten years ago. It proposes to give full power to a nominated dictator to do whatever he likes. What the Bill does is this: It says that this nominated individual will not be bound by any laws of evidence. He will not have to consult anybody, he will not have to see anybody, he will not have to take anybody's advice and he will not be bound by any rules of procedure. In this time of paper scarcity, it would save paper and time if the Minister introduced a Bill to give authority to one man nominated by him to do whatever he likes, just or unjust, legal or illegal.

We had a motion proposed by Deputy Norton and seconded by Deputy Davin, asking that a Committee of the House should go into the question of making suggestions to the Minister and Parliament as to how to get this job of work done with the greatest degree of efficiency. The Minister cannot do it. He has been making a botch of it for ten years; he has been doing it for ten years in defiance of Parliament and of the law. He tells us now that if he attempts to comply with the law it will take him 71 years to complete the job. The alternative proposed is that a Committee would sit and go into the question, a Committee that would listen to any difficulties that were real and make proposals to the Minister with the object of getting the work done expeditiously, a thing that he obviously cannot do himself. He cannot do it himself in compliance with the law or in compliance with any fair standard of honour or in a spirit of fair play. There is the alternative proposal. I did not hear the Minister express any objection to it. He could not, I think, in view of his own confession of complete and abject failure to grapple with the question. He tried the bogey of giving us a litany of terrible problems and awful difficulties. One would imagine, listening to him, that this was the first Pensions Act that this old world of ours had ever heard of. It may be appalling to the Minister. Deputy Norton has suggested giving the Minister a Committee to help him. Perhaps that proposal will allay the Minister's fears and help him to remove some of his bogeys. At least, there should be in this Parliament a number of people experienced enough in such affairs and conversant enough with the period to which the Minister refers, who would be able to help. The Minister seemed to make great play with the fact that he had two I.R.A. officers carrying out investigations. There are some of that ilk in this Assembly who would be willing and able to assist the Minister to face the terrible problems that he is up against.

In view of the statements of the Minister to-day, what is his objection to a Committee? Surely, it is better that he should take advice from a Committee of this House as to how to do the job quickly than to introduce a Bill which lays it down that a nominated individual, sitting in secret without any information passing to and fro, will be in a position to do whatever he likes, and to do that with public money. The Minister should remember that we are conferring pensions for life. I would advise him to cut out all his misleading twaddle that the purpose of the Bill is, in fact, to protect pensions and those who have got pensions. In a case before the Supreme Court, it found that a particular individual was entitled to the presence of the Referee. The Minister himself says that he has no way of knowing what cases the Referee himself heard, and what cases he did not hear. Where is the evidence to come from? In the case of those who got pensions, is the man himself to come forward and say that he got a pension irregularly? Will the Minister initiate the case to take it off him? Let the Minister be candid in what he is doing. He is bringing in a simple Bill and cutting out all the machinery. The money will be given by the Dáil, but the pensions will be given in a way that the Dáil will not know, and pensions will be denied in a way that the Dáil will not know. That is what the Minister is asking the Dáil to stand over. It is a dishonourable and tricky bit of legislation and is definitely unfair. The Minister is asking the Dáil to do that because there is a little bit of arduous work to be undertaken in order to comply with the requirements of the previous Act which, for ten years, the Minister had no fault to find with until the findings in a recent court case were given.

I certainly ask the Dáil if it has respect for itself and if it wants others to respect it, to remember the youthful years of many of the people who are bludgeoning in this little bit of legislation to-day. Let Deputies remember that, whether it was in very far back days or in less far back days, the service for which we are pensioning these men was service against constituted authority. Portion of that service was against foreign authority; some of it may have been against home authority; but in the developing years of those men, in the years when their minds were being moulded and their bodies shaped, their minds and their bodies were bent in the direction opposite to law and order. If there is anybody in this country who must be handled wisely and gently, it is men who have a tradition and a youth immersed in lawlessness. Let this Parliament hesitate when those men from two armies, from many political camps, have been weaned away from disrespect for the law, even weaned over to placing their faith in the hands of the courts, even won around to the proper civic spirit of relying for justice on the courts of the State and relying for fair play on the Parliament of the people.

Do you think it is wise? Do you not know it is nothing but dangerous? Because it means an extra amount of Departmental work and a certain amount of Departmental irritation, do you think it is wise or safe to strike these men with the law in their teeth and Parliament in the rear, and to chuck them out through the gates of Parliament, a beaten down and divided, a tricked and cheated body of men?

General MacEoin

I subscribe to the view that this is a Bill which should not get a Second Reading until some such step as that outlined in the amendment put down by members of the Labour Party has been taken. I have not heard from the Minister whether he proposes to accept the amendment or not and I would be glad of some indication as to the Ministerial intention in that respect before I finish.

It has been correctly said that this is not an Amending Bill. It is a completely new Bill. While it may not be the intention of the Minister to exercise the power under it that is given, it certainly does give him the power to nominate as referee any individual he chooses and give him any power he desires, and it is correct to say that, as an extreme step but one that still would be perfectly legal, he could put the Referee down in a back room and award service certificates just as he pleased. The Minister's statement, telling us the amount of money paid out in 10 years, is a little bit unfair, to say the least of it. What is the Minister's idea of adding ten years together? Why not take the normal expenditure of each year? Is that to try to create an atmosphere against the claimants—that they have already got too much money, that £2,000,000 odd has been given in military service pensions over ten years? Is that fair, from a Minister who claims to represent, and who is a member of, the body interested in these pensions? It is the last thing I would expect from him or from the Government of which he is a member.

I would like to remind the House of three facts, and will not speak long on this Bill, as there are too many things involved. Here is a fact which is subscribed to by the Minister. When the Act was passed, brigade committees were set up all over the country in each brigade area, composed of men who fought bitterly against each other in the civil war of 1922-23, but who had pre-Truce service. These men sat down together in the common interest and in the interest of the country, to do justice. The Minister pays tribute to the voluntary work that they did. They laboured voluntarily for the last 11 years, and put up their own funds to pay the clerical expenses. In a great number of cases, I know people who have acted on those brigade committees at their own expense. Now, did the Minister consult those brigade committees who rendered him such great service, before he introduced this Bill? Did he ask their advice on any particular section of it, or that they should give him advice on the matter, or did he allow them to make any representations on it? We know that he did not. After all their work, he just cast them aside, as he cast aside the claims of several people who are entitled to service certificates.

On a Parliamentary Question here, the Minister said it was not the intention of the Government to supersede or abrogate the decisions of the Supreme Court. I regret to say that the only words I can use in that case are to describe it as an incorrect, a deliberately incorrect, statement by the Minister. Of course it does affect the High Court decision, since hundreds of people had to subscribe funds to assist those people whose test cases were brought. It is true that the Government is not nullifying the certificates that have been given to quash the orders of the Referee, but they are going to prevent anybody else getting benefit from them. Those who subscribed the funds to make that possible are at least entitled to benefit, but this Bill takes care they will not get it, notwithstanding the Minister's promise that the court decision was not being nullified. Would it not be honest to say at once that it was the intention of the Government to prohibit anybody from going to the court again in these Military Service Pensions cases, on any matter? Then at least we would know where we were.

To say that the interviewing officers gave satisfaction is an exaggeration on the part of the Minister. They did not. I know of cases in which, when the applicant went before the interviewing officer, he was met with the query: "You are a member of so-and-so" and the answer given was "Yes, I am". Then he was told: "We will soon deflate you". Coming from a young whipper-snapper to a person who had served the State to the best of his ability that was nice treatment.

We have been told the board was loaded in favour of the applicant. How was the board constituted? The board consisted of a referee whose word was to be final; a representative of the Department of Defence, a representative of the Department of Finance, and two I.R.A. officers, so that at best it was a case of three to two. My belief is that, after some time, the two I.R.A. officers were either stupefied by what they had undergone from the other three, or else that they became mute of malice. I do not want to make use of any information that is at my disposal because I am the chairman of a brigade committee. But, if a committee of this House were set up and I was called to give evidence as chairman of a brigade committee, I would give evidence which would be helpful and which would be of some advantage to the House, if the evidence were carefully weighed.

I assert that the 1934 Act needed amendment. At various stages representations were made to the Government, to the Minister for Defence, and to the Referee that a definition of the words "active service" should be given. That was refused on the ground that the Act would have to be amended and that it would entail too much hardship and too much Parliamentary time to amend the Act in order to give a definition of "active service". We find that under the three referees that were there from time to time there was some alteration now and again in the procedure which altered the meaning of the term "active service". That is a matter which a committee could inquire into. If the Minister seriously meant to give us information which would enable us to make up our minds as to whether this Bill should be passed or not, he would have explained the different definitions given to the term "active service" as laid down in the Act.

On the question of additional evidence, I assert that, when some document becomes available or some positive evidence becomes available which was not before the Referee and which it was not possible for the applicant at the time to submit, the Minister should send that to the Referee, whether it was regarded as additional evidence or not. I hold that the Minister should decide that it was additional evidence. I will give you an example of what I mean. X was in hospital some time in 1921. For some reason or other, when filling his form he said that he went to hospital in June, 1921, and was on duty before the 1st July, 1921; in other words, that he was less than 18 days in hospital. The applicant was asked did he inform anybody that he was sick, and he said that he was not sure; that he thought he did not. It was held that that constituted broken service and a certificate was refused to that officer. The hospital that he went to was written to by the secretary of the brigade committee because they were satisfied that he was not in hospital during that period. The hospital gave a certificate that he was not admitted until August, 1921, and that he was discharged before September, 1921. I submit that that was additional evidence that was not available to the applicant. The Minister says it is not, and it is not referred back to the Referee on the ground that it is not additional evidence. I could cite scores of such cases. Out of a brigade roll of approximately 1,600, the brigade committee of which I am chairman have arrived at the conclusion that 160 appeals would meet all the requirements and would give justice to everybody. Yet the Minister blandly turns them down.

At various stages during the administration of this Act it was made quite clear that too elaborate a documentation was insisted upon. At a very early stage, when they insisted upon the preparation of maps, the preparation of brigade records, and so on, I appealed to the Minister that the least the Government should do in the matter was to give the brigade committees copies of the Ordnance Survey maps. Even these were not given. The result was that brigade committees had to prepare their own maps, and had to work for two or three years in doing it. The Minister has given us an idea of the time it took a fairly large sized staff to deal with 1,000 cases.

But imagine brigade committees throughout the country getting a list of 30,000 cases to reconsider and being told that, unless they made representations within 28 days, it would be certified that these were persons to whom the Act did not apply. Will anybody with common sense say that brigade committees should sit down day after day to deal with 30,000 cases all over the country? If it would take 80 years for a huge staff working daily, with all the machinery at their disposal, to deal with all these cases, how long would it take a brigade committee to deal with, say, 500 cases, and do their ordinary work at the same time? Yet, if they did not report back within 21 days, the ukase went out that the persons concerned were persons to whom the Act did not apply.

If a brigade committee made a mistake in a certificate, the Referee gave them "down the banks" and told them that it was bad staff work on their part. But if the Referee's staff were guilty of an error, that was all right. I suppose they were satisfied that at some stage a Bill like this could come in to cover up the mistake made—an indemnity Bill for the errors of those who were charged with the responsibility of the administration of the Act.

Personally, I am glad that some date is put down as being the final date upon which appeals would be received. It would be the greatest comfort that ever came my way if I could say: "The last day is gone for appeal." But, is it fair? Because, even at this late stage additional evidence has become available under the 1924 Act, that was not available in 1924 or in the intervening period. I assert that if there is additional evidence available to-day under the 1924 Act, the applicant is entitled to put it in when he is able to establish it. In Section 4 of this Bill we are going to slam the door and bar it by saying that on and after the 1st day of January, 1946, no appeal shall be considered by the Minister. The Minister can say: "I am bound by Section 4 of the Act." On the other hand, Sections 2 and 3 leave the Government with unlimited authority to do what they like. It is the greatest contradiction in terms that was ever introduced in any Parliament.

Again, in the 1934 Act and in the 1924 Act it was laid down that imprisonment would not break service. I always understood that imprisonment could be regarded—and was intended to be regarded—as continuing service, because some people endured even greater hardships and greater dangers during imprisonment than while they were in the field. While imprisoned they were subject to the military commands of general headquarters and to the orders of the senior officers of the prisoners. If the applicant was arrested at his own home or while doing some work in the field near his own home or in anybody else's place, no matter how long that applicant was in jail, he is debarred. On the other hand, if he was arrested carrying a dispatch or a code then even the three months, April, May and June, and the 11 days of July, would qualify him for a pension.

An extraordinary thing arises in my own case. If I had been arrested at Martin's cottage, in 1921, according to this Act, I would not qualify because I was not on duty. When I was at Martin's cottage on that particular day I went home to do the trade books for my mother and, therefore, I was not on active service according to the present day definition, but I was armed and I regarded myself as being on duty. When the enemy forces came to my place I fought my way out of it and I was not arrested. That, then, counts for service, but, on the other hand, if I had put up my hands and walked out, according to the definition of "active service" I would not be entitled to service for that period on the ground that I was not on duty.

Representations have been made that amendments of that sort should be made to the 1934 Act but that was not done because the Government was not prepared to amend the Act. But—like the Defence Forces (Temporary Provisions) Act—any section which becomes of benefit to the ordinary citizen and of which he takes advantage, either through the courts or by pressing his claim, must be swept away if it becomes an embarrassment to the Government, and something penal put in its place.

I respectfully submit to the Government through you, Sir, that the Government should withdraw this Bill and reconsider the whole matter. I am not at all impressed with the 80 years, 60 years or 26 years or any number of years that may be mentioned as being the time it will take to re-hear the cases, because a very simple section could be brought in saying that three people are hereby established as investigators and referees at the same time and—as was done under the 1924 Act—they could go through the whole 70,000 applications in nine or ten years. Most of the spade work has been done. A huge amount of investigation has been carried out. It would be very easy—as was done under the 1924 Act— to send these three people to various centres and to have evidence taken. They could take all the evidence at each centre in two or three days.

The case has been made that the Bill is necessary because certificates already given have been invalidated by the judgment of the court. Again, a very simple section could be brought in saying that where a service certificate has been given, it is valid, and that if there is any doubt as to its legality, this section removes that doubt. I do not think any of us would quarrel with such a section.

I appeal to the Government to withdraw this Bill and to reconsider it from the angle of amending the 1934 Act and the 1924 Act, by establishing a different type of administration or authority. I suggest to them that the 1924 Act was one of the simplest and one of the best. They could do that very effectively. They could amend it in the following respects: (1) that a definition of active service be included; (2) that the question of arrest and imprisonment, instead of breaking active service, should be considered as a continuation of active service; (3) that when an appeal is made to the Minister, if the Minister is satisfied that there is additional evidence, it should be incumbent on him to send the case back to the Referee for reconsideration and (4) the schedule relating to reductions in pensions because of State employment or employment in a public appointment, should be withdrawn and a reasonable provision proposed. In this connection you have extraordinary cases. A man is receiving unemployment assistance in the winter and, automatically, that reduces his pension by 5 per cent. If he draws only one week's dole, or if he works with the county council or a local authority for one week and has £10 a year pension— good God, such a figure as £10, and there are a good many with less!—he will lose 10/-.

The Minister promised us that amending legislation would be brought in to deal with the Schedule. When he is amending the Act, why not make a decent job of it? Why not amend it in the respects in which he has under taken to amend it? What is the reason for rushing this through now? If the Government say they have not put in the amendments which they promised because of the urgency of this legislation, I fail to see any urgency. There can be only one matter of urgency and that is in relation to the certificates already issued. I know that in every case in which a certificate was issued the Referee and the board sat together when hearing the evidence. I am not aware of a single case in which they were not together when evidence was being given.

Of course, it is hard to please everybody. I heard Deputy Norton cite the McCarthy case and he said the applicant was not aware of the evidence tendered. That is one of the most difficult problems to deal with. I want to be perfectly fair to everybody concerned. It is very hard for a person to say definitely that an applicant was not present at an engagement when he claims that he was. Suppose the applicant is present and I, as verifying officer, am there as a witness and he gives evidence that he was present at X barracks or X ambush, or whatever it may be. I am fairly positive that he was not and I say he was not, and if the Referee does his duty he must place either of us in the dock for perjury.

The danger of the memory is always very hard to eliminate and it is difficult after 20 years to say very positively that a person was not there. You can be very positive about some of the people who were there. If you take a person like myself as chairman of the brigade, or the vice-chairman or the secretary, and if, although there might be fair evidence that such a person was at a particular engagement, one of us says he was not present, that leaves two people deadly enemies for the rest of their lives. If that person is refused a pension it is not the Referee or the Minister or the Act he will blame, but the person who gave evidence against him and let him down. Therefore, there is a good deal to be said for the procedure by which all evidence tendered by the applicant or by witnesses is regarded as confidential and subject to the Official Secrets Act, and that no matter what information came to the knowledge of the verifying officers they could not say to anybody, and particularly to the applicant, that "such and such a thing happened that turned you down".

It was also very important from this point of view. There was a civil war in this country, and things were done by the executive forces and, I know thoroughly well, by members of the National Army, that no one would stand over or approve of. If in the course of the evidence I became aware for the first time that a certain man did so-and-so, notwithstanding all the comradeship that was on the brigade committee, that could very easily lead to a feud that would last for generations. I think it was a wise provision on the part of the Referee. I do not care who holds to the contrary, I consider that is one of the provisions I can stand over.

If, as is suggested, all the evidence is given in open court, with all the witnesses present, then, instead of a referee it would be better to let the cases go to the Circuit Court judge or the district justice, and let the evidence be heard locally, so that when a person makes an application for a military service pension he has to prove in open court what he did, because the knowledge that the people of the district are aware he did not take part in a certain engagement will stop him from going forward, and the obligation on any officer of saying that a man did or did not do this, that or the other will be avoided. If, instead of the confidential method of taking evidence, you make it semi-open, it will be no good. There is only one chance of success, that is, by throwing it open to the world, because otherwise it will be open to the world on a basis of whispers, which will be much worse, because legs will be put to it. If you take it in open court, there will be stenographers present, as well as the people of the district who will know what service a man claims, and will also know whether or not he had that service.

I appeal to the Government to reconsider the whole matter. I ask them to consider well the advisability of accepting the committee suggested in the amendment, or some such committee, or, alternatively, to ask delegates from the brigade committees throughout the country to a conference with the Minister. Let there be no concealment on either side, but let there be confidence on both sides and then, I think, justice can be done to all. Otherwise, it cannot be done, and it certainly cannot be done on the basis of this Bill. After all the promises the Government have made to military service pension claimants for the last ten years, this Bill is a very unfair return. I know the promises Fianna Fáil candidates made to these people. I do not propose to go into the details, but I say it was unfair to lead them on for ten years in the belief that they would get justice and then to introduce this Bill.

Mr. T. O'Sullivan

It was a great relief indeed to listen to the case put forward by Deputy MacEoin after having heard the tirade of abuse of the Minister personally from Deputy O'Higgins. Deputy MacEoin made many suggestions which, if feasible, we should all like to see carried out. Deputy O'Higgins made no such suggestions, but in his usual style attacked the Minister. I think Deputy MacEoin made a very good case for the introduction of this Bill. He knew that there were 60,000 applications and he knew that 11,500 applicants had been awarded pensions under the 1934 Act and 4,000 odd under the 1924 Act and he was satisfied that, even in his own brigade area, the remainder were not entitled to pensions. As a matter of fact, he stated that if 160 cases were heard on appeal from his county, the situation would be met. Surely that is the best case that can be made for the introduction of the Bill.

Does anybody believe that the remainder of the 60,000 applicants should put the State to the trouble and expense of having their cases heard again when we all know in our hearts and souls that every one of them is not entitled to pension for service to the country in time of war? There is no doubt about that. Applicants who assisted in many ways may possibly be entitled to consideration in other ways, but we are all satisfied that not every one of these 60,000 applicants is entitled to a pension under the 1934 Act. The point which is worrying everybody, so far as I can find out, is that there is a limited number of cases which should be further considered.

They tell us how nicely the 1924 Act was administered. They made it very easy to administer the 1924 Act by confining it to applicants who had service in the Army at the time. An applicant who had not served in the Army was automatically cut out and had no appeal. Figures were available to guide the board, and there was no trouble. No such official records were available in respect of the 1934 Act. Brigade committees had to compile records, and these committees were composed, as Deputy MacEoin has said, of men who had fought on both sides in the civil war, but who were united in their efforts to get all that could be got for their comrades out of this Act. These brigade committees furnished records, and, after 20 years, they could not be certain that all the records were without fault, but to the best of their knowledge and ability, the records were compiled and furnished. These were the only records they had to work on in respect of the 1934 Act, and, even in the compiling of these records alone, much time had to be spent, so that it took ten years to get to the stage at which we now are, when there have been 11,500 awards while there were only 4,000 odd awards, covering half that number of years, under the 1924 Act.

I think there is no time lost yet. I should prefer much more time to be spent so that the matter would be dealt with satisfactorily. Nobody intends that the difference between the 60,000 applicants and the number of successful claimants, as well as the number of cases on appeal, that is, roughly 40,000, should be re-heard. Nobody thinks of that at all. It is all right to use it as an argument in opposition but I do not believe that any Opposition Deputy believe that that should happen. I am sure that no Opposition Deputy, with a knowledge of what "service" could mean in respect of either of the Acts, will agree that it would be necessary to re-hear all these cases.

If the Referee's procedure, in dealing with applicants who were refused, has been proved to be wrong, surely it was also wrong when he dealt in the same manner with the applicants who succeeded. Therefore, I hold that the Bill is necessary to regularise and legalise the procedure under which pensions were granted and pensions refused. The brigade committees did a lot of work at that time. According to Deputy MacEoin, they had 30,000 cases to deal with in 28 days. These cases were dealt with by 82 brigade committees. That did not mean a big number of cases for each brigade committee over that period. The brigade committee was aware of what was happening, it was a representative committee, and in so far as lay in its power it was out to do its utmost for the applicants in its area.

I have the feeling that about two years ago when what might be described as weak cases were coming before the board, the board, possibly, may have been tempted to deal with cases quickly, with cases that did not disclose active service. It is quite possible that there were a few such cases included in Deputy MacEoin's 160. I know that there are a few such cases in my brigade area that were passed over for the reason that a prima facie case had not been established on the evidence tendered at first. If there are any such in any brigade area, the applicants are being given the opportunity in this Bill to lodge appeals up to the 1st January next under the 1934 Act. Therefore, the position is as it was before the Bill was introduced, that appeals can be lodged, provided there is additional evidence. I desire to support Deputy MacEoin on that point. As regards additional evidence which was not previously available, I would suggest that the words “additional evidence” should be further defined by the Minister when concluding, so that applicants may know where they stand with regard to the appeals which may be lodged before the 1st January next. I would also suggest to the Minister that there may still be a few people in the country or outside of it who consider they are entitled to pensions under the 1934 Act. They should get a further opportunity of applying, up to, say, the 1st January next.

I cannot see why there should be all this worry and trouble about this Bill. The machinery for the lodging of appeals remains. The Opposition want to have it both ways. They say that we are taking away the law on one hand and not giving it on the other. If it is illegal to give pensions in one case it is illegal to do it in the other. Of course, any stick is good enough to beat the Government. That seems to be the attitude of some of the Opposition rather than to be any way helpful in getting over the present position. I hope the Minister will bear in mind the suggestions I have made.

Mr. Donnellan

The sweeping suggestion from Deputy O'Sullivan to the effect that the 60,000 applicants are not entitled to pensions must be a brain-wave on his part: that it is right they were turned down, that they should be turned down and should not be listened to for the future. But, apparently, it is right that nearly 12,000 who got pensions should continue to get them. I am sure Deputy O'Sullivan knows as well as I do that amongst the 60,000 applicants who were turned down you have men who did as much, and were as much entitled to pensions, as those who got them under the 1934 Act. The machinery proposed in this Bill is intended, I think, to keep them back; not to give them what I would call a fair or an honest hearing.

My chief objection to the Bill is that it interferes with a court decision. I am glad the Taoiseach is here because I remember—it is not so long ago— when he said in this House that any discussion here on a decision of a court of justice would be the end of all justice in this country. This Bill, in my opinion, is not a discussion on a decision of a court of justice. It is a Bill to nullify a decision of the Supreme Court in the country. Even though it may be shrouded in other terms, the danger is that it actually means that. It legalises the position that the Referee need not be present for the hearing of those cases.

I may tell the Minister that as far as I am concerned, I listened—to a certain extent I laughed—to the discussions from the Fine Gael side about the 1924 and the 1934 Acts, and to the discussions from the Fianna Fáil side about the same Acts, because I believe that both Acts were only vote-catching propaganda. I remember the time when Fianna Fáil went out and claimed that no able-bodied man in this country should ever get a pension, and that the 1924 Act should be abolished. But when they got into power, instead of doing what they said on that, they brought forward the 1934 Act for propaganda purposes, an Act which, to a very large extent, they are annulling to-day. Even during the election, train loads of fellows came up here to explain how they were going to get pensions. This legislation was forced on the country. I believe that those who came under the 1934 Act were just as much entitled to pensions as those who got them under the 1924 Act. I want to say that I think the introduction of this Bill, which is an attempt to nullify the 1934 Act, is the most disgraceful thing that was ever done. I have referred to what Deputy O'Sullivan thinks of the 60,000 applicants. The Minister, too, in his long drawn-out statement talked about them. I know a fair share about it and I can say that not 10 per cent. of those people ever expected pensions. They merely want some recognition for the service they rendered to the country, but they are not going to get even that recognition, nor are they to be allowed, according to this Bill, to go any further. Under the 1934 Act, the board was composed of representatives from the Department of Finance and the Department of Defence, representatives of the Old I.R.A. and the Referee; and it took a very long time. I think it was a disgrace that, when it came before the Supreme Court, the decision was not upheld in the way that those people could go back and that the Referee should have to be present again. If these people come along again, what can they do? This Bill is legalising the procedure that the Referee can stand aside. What can one expect but the self-same decision as before?

Deputy T. O'Sullivan said that these 60,000 are not entitled to pensions, but I can say for his information—he is not in the House at the moment—that I personally know men who have been denied a certificate, though they actually took rifles out of R.I.C. men's hands in ambushes. About 12 months ago in the House, I said—and I still hold to the view—that the reason for that was that the verifying officers could come along and give their evidence before the board without the applicant being present. Amongst those verifying officers there probably were men who were on the opposite side during the civil war and, as a result, you could not expect a verifying officer who was, say, on the Republican side during the civil war, to give a fair statement regarding his comrade of days gone by who stood on the opposite side.

The Act seems to have been nothing short of a vote-catching instrument It is up to us now to ask the Government to live up to that Act and to give a fair crack of the whip to these people. It is said, even by important people in Government: "Oh, these are only pension hunters". That is not the case: all these people want is a certain amount of recognition for the services they gave to the country. I put down a question to the Minister some time ago regarding a certain brigade area in South-East Galway, as to who got pensions. The Minister's answer was: "Two brigadiers, a battalion commandant, and about three privates." Surely more than three privates qualified? Again, we hear about these 60,000 applicants. The late General Collins stated that he did not believe there were more than 10,000 or 15,000 people fighting the Tans, but I am sure the Minister realises that, in many cases—and I know them in my own area—a company captain, who had to get 60 men under his command in order to qualify for that rank, turned round and raked up all people who were in the Volunteers. He got the names of the 60 men, so as to qualify for a rank; but that is not to say that those 60 men want pensions or should get pensions. They certainly should not. The same thing applied to brigadiers. A man was supposed to have 1,000 men under his command in order to qualify for that rank. He got those names and got his pension. That happened in all such cases, but that is not to say that the 1,000 men expected pensions. They did not. I believe it is propaganda, and I believe it is a sharp practice by the Minister, to be going around the country making statements that 80,000 or 90,000 people have applied for pensions.

I would ask the Minister and the Government, in all sincerity, to reconsider this matter. They may consider that the life of the Government is sure for the next five years and that those who got the pensions and are in key positions may be played against those who did not. They may consider it perfectly safe and good tactics to bring in this Bill, saying it is to continue the pensions paid to them. I would ask the Government, however, to do the one thing that ever will satisfy the people who are responsible for the freedom we have now, who are responsible for the Government and for Deputies being assembled here to-night in an Irish Parliament. I ask the Government to do the one thing that will ever heal and settle up this matter— to accept this motion and to take into its confidence men of the Old I.R.A., no matter in what part of the House they may be. There are as good men sitting in other parts of the House as sit on the Fianna Fáil side—men such as Deputy General MacEoin. Let such men go into the matter and draft a scheme which will give at least some small recognition to those responsible for our being here to-night and for the functioning of this Government of ours.

I also ask that some recognition be given—which is not given under the Act or under this Bill—to the men who were sentenced to death in this country. If the Government does that, it will be applauded for doing so. I do not ask that pensions be given to all who made application. I know that thousands, perhaps, of those applications were not made for the purpose of getting a pension, but simply so that some recognition may be given to people, some of whom are on the brink of the grave to-day, who served their country well, and so that their children may be able to say: "Well, my father did his part in those days." There have been terrible abuses. In my area alone I know of a case where a man is being blackmailed in connection with statements put before the board, statements which the people who put them before the board were not able to, or would not publicly, stand up to. All that happened because we divided during the civil war. We went one way or the other and, unfortunately, when it came to giving evidence before the board, we were inclined to injure one another. That time has passed away, thank God. I appeal to the Minister to accept this motion. I appeal to him to take back this Bill and consider doing something so that recognition will be given to these people. That is all I want. We have had Deputy O'Sullivan saying here that he knows well that these 60,000 were all false claims; that these 60,000 were people who were not entitled to pensions.

Mr. Aiken

He did not say any such thing.

Mr. Donnellan

He said they were not qualified.

The Taoiseach

He did not.

Mr. Donnellan

I was listening to him. I want to tell the Minister that these 60,000 men were as fully qualified for pensions as those that got them. I ask him to accept the motion before the House and take back this Bill. If he does that, he will be doing something for which he will be thanked by the people of the country. He will be doing something that will be justice. That is what the Supreme Court decided and I think the Government or any Party in this House should not go beyond the decision of the Supreme Court.

Mr. Coogan

Dr. Johnson once described a pension as the pay given to a State hireling for treason to his country. I could understand a Bill of this kind being introduced if we were circumventing people who had committed treason against this country from obtaining pensions of any kind at the expense of the Irish people. But, having regard to the fact that in this matter we are considering giving some recognition to men who laid the foundations of this State and who made it possible for this House to come into being, we have to consider the matter from an entirely different angle. The Bill itself is a masterpiece of surrealist draftsmanship; that is what I describe it as. It is an attempt to obscure the real issue before the House. It would have been a very simple matter to repeal the relevant sections of the 1934 Act and to produce them in an amended form in this Bill. But, instead of that, we get a number of sections which are not only retroactive in their effect, but actually section and sub-section within themselves proceed to modify themselves as we get down in the Bill. The Minister in explanation of that stated that there were so many varieties of cases coming before the Referee that it was essential that these different provisions should be made. I do not accept that view at all. The Minister, in presenting the case for the Bill to this House, was equally surrealist and perplexing in his statement of the case. We got a maze of figures from which the conclusion was reached by him that, if this Bill were not introduced, the result would be administrative chaos; that administrative chaos was the only alternative to this Bill. I suggest in all seriousness to the Minister that the administrative chaos was produced by the failure of the Referee, or the various referees to implement the procedure laid down for them under the 1934 Act.

What have we got in this Bill? We have got a complete scrapping of the machinery set up under the 1934 Act and, in its place, we have the Referee put in this position: that he need not make any inquiries from anybody; that he need not hear the applicant; that he need not receive representations from the applicant or from anybody else on behalf of the applicant; that he need not summon anyone; that he need not inform the applicant of any evidence which he has received; and that he need not allow the applicant or anyone else to give any evidence. Furthermore, we have this extraordinary provision: that the advisory committee need not at any time be complete and that, instead of a complete advisory committee, the Referee may act in the absence of any member of the committee. In other words, you get the position that the Referee may do just as he pleases, because, in Section 2 (1), it is provided that the advisory committee need not act unless they are requested by the Referee to assist him—"each member whereof shall, if so requested by the Referee, assist him in such manner as he may request". In other words, the Referee is being given carte blanche in this Bill to dispense with all formalities, to dispense with all procedure, and to give a cut-and-dried decision without acquainting anybody of the grounds upon which that decision is based. I regard that as a complete reversal of legal procedure.

The argument put forward by the Minister was based on two grounds: (1) that it was necessary to validate the pensions which were already granted and (2) that, unless the defects in the procedure adopted by the Referee were cured in this Bill, he would have to re-investigate the 11,000 odd pensions which have been granted and that would take quite a number of years. I do not hold with that argument. I believe that the argument has been advanced in terrorem to frighten people who are already in receipt of pensions into supporting this Bill. As other Deputies pointed out, I cannot conceive in what circumstances any person would go to the court to invalidate the pension which he was in receipt of, and, on the other hand, I cannot conceive any Minister of State going to the court to invalidate any pensions which had been granted under the 1934 Act.

We have to remember that, under the 1934 Act, the Referee had an advisory committee of two high I.R.A. officers, a representative of the Minister for Defence and a representative of the Minister for Finance, and that the pension was granted on the decision of the Minister for Defence, with the consent of the Minister for Finance.

Having, under the statute, decided to grant a pension, the Minister or the Government would be estopped from pleading their own failure before any court in this country and it would be impossible for them to invalidate their acts. It is a principle in law that you cannot plead your own wrong before a court to justify your own inaction or action, as the case may be.

That is one point. The other point made by the Minister is that some 60,000 odd applications have been received and that it would take a greybearded Methuselah, or a series of grey-bearded Methuselahs, to deal with them. He has told us that some 30,245 applications were disposed of by the Referee or the interviewing officers appointed by him. At least half of the number of applicants were disposed of by the machinery set up under the 1934 Act. I think the Minister mentioned the figure of 45,416 as being the number that were notified that their claims were rejected. We know that some 11,577 pensions were granted. On the Minister's own figures, there seems to be no case whatever for this Bill. The Government have been stampeded by the recent decisions in the Supreme Court. As far as I remember the Minister's figures, one case was brought to the court in 1942, 11 cases in 1943 and 62 cases in 1944—a total of 74 cases. In other words, only 74 persons in this country have challenged the Minister's decision and have tried to assert their rights in the courts, out of that host of applicants.

What do we find in connection with the cases that have come before the courts? We find that the cases were based chiefly on these grounds: that the advisory committee did not sit with the Referee; that only some members of the advisory committee, in the absence of the Referee, heard the evidence; that the Referee did not hear the evidence himself at all: and that if evidence was received by the Referee, by the advisory committee or by any of its members, adverse to the applicants' claims, the applicants were kept in the dark as to the nature of the evidence and were given no opportunity whatsoever of controverting that evidence or of testing it by cross-examination. These were the grounds upon which the cases were taken to the Supreme Court.

In the McCarthy case an extraordinary state of affairs was disclosed. McCarthy applied on the 3rd April, 1935. He heard nothing of his application for four years. On the 1st January, 1939, he had to come from Cork to Dublin, where he was questioned by a civil servant, in the absence of the Referee and in the absence of the advisory committee. There is a lapse then until the 28th October. 1941, and nearly three years later we know from the evidence given in the court that some evidence was heard by some members of the advisory committee in connection with his application. The nature of this evidence was not made known to McCarthy. On the 19th May, 1942, six months later, a little more evidence was heard, again by some unknown members of the committee, and the nature of this evidence was not disclosed to McCarthy. On the 13th October—another six months later—further evidence was received by some anonymous members of the committee, and McCarthy was not informed of the nature of that evidence. On the 17th December, 1942, his application was refused. I do not say that that is a fair sample of the procedure adopted by the Referee or the advisory committee, but it is one case that we know has been thrashed out in the courts. It is clear proof that the machinery set up by the Act was either deliberately set aside by the Referee, or that he choose completely to ignore it, or, at the behest of the Government, he had to ignore it. I do not know. We are not told. I do not know what the reasons are. No reason has been given us by the Minister as to why this machinery broke down. I think this House is entitled to some explanation of the extraordinary state of affairs disclosed in that case. The Minister said that the Supreme Court did not make any comment upon the merits of McCarthy's claim for pension. Of course, it did not, because, as far as I know, the Supreme Court was not asked to comment on these things.

To contrast the procedure set up under the 1924 Act with what I have just related, 21,147 cases were disposed of by the board of assessors under the 1924 Act, within foru years— in fact in a little more than three years. One thousand and sixty-six of these cases were reviewed on appeal by the board of assessors, so that you get a total of 22,213 cases disposed of in approximately three years. Yet we are told in this House that it would take 70 or 80 years to dispose of the extraordinary number of claims that has been put in. I think that argument is disposed of. We are told that it would take 70 or 80 years to re-hear the cases. I would remind the House that, according to the newspapers for 2nd October, 1943, counsel for the Attorney-General told the court that the Referee would take 43 years. The Government propagandist tells us it will take 70 or 80 years. I do not know whether they are adding figures merely for good measure or that they just want to confuse the issue before the House.

If the procedure that was adopted under the 1924 Act was followed—and the Government were quite free to follow it under the 1934 Act—all these cases could have been disposed of easily within the past ten years. The board of assessors, under the 1924 Act, sat at no less than 38 towns and cities throughout the State. They took evidence on the spot. I appreciate the Minister's point when he says that it was easy to collect evidence then as matters were fresh in people's minds but, nevertheless, the position is that the board of assessors sat in 38 centres throughout the State whereas the Referee under this Act, so far as I know, pigeon-holed himself in some unknown building in the Department of Defence, and, if the Minister's figures are correct, simply went into hiding.

Now we are asked to scrap the existing procedure, to give the Referee and certain anonymous civil servants powers to decide these matters, without a hearing of the applicant, without any procedure whatever. We may be told that that is necessary in order to have finality in these matters. I agree that at some stage we must have finality, but we cannot have finality at the expense of those upon whom this House and the Government itself conferred certain rights by statute. I say in all seriousness that if this House confers a right by statute on any body of citizens and that in the exercise of those rights any of these citizens goes before the court to redress a grievance or to assert the right, that it is politically dangerous, not only to the fortunes of the Party sitting on the opposite benches, but to the very institutions of this State, to attempt to do anything of this kind because you are handing over the judicial functions of our courts to some anonymous civil servant.

Under the 1934 Act, when we set up the Referee we ensured that the Referee, in the exercise of his powers, would act at all times judiciously. What are we doing now? We are empowering that Referee under this legislation to grant the maximum pension without hearing anybody or considering documentary evidence or representations of any kind. We are equally empowering him to reject any claim for pension that may be sent to him, or to refuse to review any claim he has already decided. That is the position, and I say it is a very serious one. We are in this Bill, as we have been doing in recent legislation that came before us, conferring prerogative powers upon anonymous civil servants. That is what the effect will be and, as far as I can see, the position is being rapidly reached in this country that when a citizen has a right to assert in the courts by way of legal action his rights, the Government immediately will step in and deny him that right. That has been done under the Drainage Bill; it is being done under other Bills, and I regard it, from the legal point of view and from the constitutional point of view, as a deplorable development.

Bacon, a famous English lawyer, once said that when it comes to litigation between the subject and the sovereign, that which is last shall be first and that which is first shall be last. That is what you gentlemen on the opposite benches are being asked to do under this Bill. You are being asked to put the men who shouldered their guns for Ireland, last. You are being asked to throw them into the gutter. You promised them certain things in 1932 and 1933, and in 1934 you proceeded to implement these promises. You are now tearing up what you then implemented and in this Bill you are throwing those people upon the scrap heap. I do not want to dwell on that aspect of the matter, but in all seriousness I want to say that if this tendency of conferring judicial powers upon the Civil Service is to be continued, we shall have to consider setting up some other system of law by which the civil servant will be made to come to heel.

The only fair and decent way of disposing of this matter of pensions is by having the claims thrashed out in open court, where the claimant can put forward his case, where he can be cross-examined by the State, and where equally the claimant can cross-examine the State. That is the only fair proposition for those people. Under this legislation you are giving irrevocable decisions to, in theory, the Minister; in practice, the civil servant, who serves under the Minister. All these gentlemen, I should like to remind the House, hold office at the pleasure of the Government. They have got to bend sometimes to the will of those above them. They can be influenced in their decisions and it is not proper that legal rights conferred by statute should be snatched now from the people who have these rights and that they should be thrown to the anonymous civil servant.

I want to make myself clear as regards the Civil Service. I have no objection to the Civil Service; as an administrative body the members of our Civil Service are probably the equal of any Civil Service in the world. They are quite capable of doing their job—the administration of this country. That is not my quarrel. But it is not their job to usurp judicial functions, and when a Government comes to this House with an arbitrary decision that we must have an end of this matter, that we cannot see the end of these applications except in one way, to scrap the whole lot, we are drifting towards legal chaos as well as administrative chaos.

This matter of conferring judicial powers upon civil servants has given very serious thought to people in other countries. I do not want to occupy the time of the House in extensive quotations, but I should like to draw the attention of the House to a book, The New Despotism, by the late Lord Chief Justice of England, Lord Hewart. Confronted with the problems which he had there, and seeing the drift of legislation on the other side, conferring powers under every Act or Order upon the Civil Service, he decided to put his thoughts before the public, and I shall give you a few quotations from his book. I think they are apropos and very pertinent. He says:

"Now it will probably be admitted that matters must have gone rather far before a Minister thought fit to propose, and Parliament, either deliberately or by inadvertence, consented to approve, a scheme that empowered a Government Department, on grounds of expediency, to make departmental order modifying the provisions of the statute which conferred the power. A little inquiry will serve to show that there is now, and for some years past has been, a persistent influence at work which, whatever the motives or the intentions that support it may be thought to be, undoubtedly has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law. Whether this influence ought to be encouraged, or whether it ought rather to be checked and limited, are questions into which, for the moment, it is not necessary to enter. But it does at least seem desirable that the influence itself should be clearly discerned, that its essential nature and tendency should be quite plainly exhibited, and that its various methods and manifestations should not be allowed to continue and multiply under a cloak of obscurity."

Again he says:—

"Many persons, of course, have from time to time perceived and deplored this particular mischief. But, somehow, some of them have found it more convenient to their inclinations or their aims to refrain from words even of good omen... Or, again, they have so nicely balanced their appreciation of what is good and their examination of what is less good that, with the convenient help of a little confusion of thought, they have left the detached spectator wondering upon which side they appeared. But to the impartial eye of the fearless citizen it is obvious that the official just as surely seeks to escape the jurisdiction of the courts when he takes power to make regulations having the force of a statute as when he in terms provides that his decisions shall not by any method be open to review."

Now, we are in the position in this country that we are giving these powers, if this Bill passes through the House, and the subsequent decisions taken under this legislation are open to review nowhere. They are final and conclusive and there is no redress for the aggrieved citizen. I put it that that is a position which we should not, by our deliberate act, bring about in this country. I go further and say that if you continue in this drift of legislation by decree and order of a Minister or a department of State, then you have to face up to the proposition that we will sooner or later have to establish here what you have on the Continent, a system of administrative law, under which the citizen can go into the administrative court and have his rights fought out as against the civil servant. He further says:

"In the kind of legislation which is being considered, it is usual to provide that the decision of the Minister shall be final and conclusive. When this is the case, the courts are powerless to intervene, however unjust and absurd a decision may appear to be, and even though it is obviously based on an erroneous view of the law. It may be said that, if it can be shown that no real discretion was exercised by the deciding official, and the decision is merely capricious, or is perverse or corrupt, the courts might hold it void on the ground that it does not really constitute an exercise of the authority vested in the Minister at all. But where one is dealing with a decision given without reasons, by an anonymous official, who is not ascertainable, how can any such matter be proved?"

That is the position. We are handing over the powers of the court, lock, stock and barrel to the anonymous official who may be appointed by the Minister to deal with these matters. The Minister has confessed here that he could not say what happened in any particular case, or in any particular number of cases. Of course, he could not—these matters have to be decided by the Minister.

I say in all seriousness that the Minister should reconsider his position, and that particularly having regard to the class of citizen whose rights are affected by this legislation, citizens who gave good service in difficult times, he should be slow to force the Bill upon the House. He has a machined majority, and I do not know whether that majority will support the Bill, but, if they do, I suggest that they do so in violation of their consciences. I suggest that many members of the Government Party have no sympathy, good, bad, or indifferent, with this Bill, and I suggest furthermore that they are neither complacent about nor indifferent to the merits of the claims of these men whose rights are affected by the Bill; but they are gagged and bound, I daresay, by the Party Whip in support of the measure. Leave it to a free vote of the House and see what will happen.

As the matter of pensions has arisen, several cases have come to my notice recently of widows or dependents of men who gave good service and who were in receipt of pensions, who are in a state of destitution, and I think the time is appropriate to mention their cases. I know we cannot bring them under a pensions scheme. I know that reasonable pensions were given to the husband or father, as the case may be, in the past, but I do appeal to the Government to consider doing something to assist these people in their destitution.

An Ceann Comhairle

It does not arise on this matter.

Mr. Coogan

Indirectly, it does.

An Ceann Comhairle

The Deputy himself admitted that it did not relate to pensions, and if this is not a Pensions Bill I do not know what it is.

Mr. Coogan

I am speaking of the dependents of pensioners, and I just want to make the point that the opportunity is available to the Government to do something by way of benevolence towards these people. Some national organisation could be set up for the Old I.R.A., and a State subsidy given to it to enable it to look after cases of destitution of that kind.

I reiterate what I said at the outset —that the Minister has not made a case for the Bill. On his own figures and on his own showing, there is no case for it, and I ask him in all seriousness to withdraw it and to devise fresh machinery for the Referee, if you like, or, otherwise, set up some sort of Select Committee of the House to dispose of the outstanding claims. I do not believe they are very many, having regard to the fact that of some 46,000 applicants who were notified that their claims were rejected, only 74 people have chosen to assert their rights in the courts. I think there is some merit in the proposal put forward by Deputy Norton for a committee to investigate these cases afresh. As Deputy MacEoin has said, every assistance would be given to such a committee, and I believe the job could be done inside two years.

Mr. O Cléirigh

The most dangerous speech against a measure I have ever listened to was the speech of the last speaker, because if I were wavering as to how I should vote, I certainly would consider voting for the Bill now. He attempted to bring in little political quibbles. He tried to deal with this matter first in a mean political Party fashion and then in another manner. If this Bill is taken seriously at all, speeches such as those made by the last speaker and Deputy O'Higgins would need to be recast by these responsible Deputies. They would need to leave out of their speeches the argument that members of this Party have now lost all care and all respect for members of the Old I.R.A. That has been flung across the House, and probably will continue to be flung across the House while this Bill is under discussion, by men who at one stage, or at many stages, talked about the Old I.R.A. as being solely pension racketeers. Now they suggest that they are the one body of men who should get consideration and that this Party is now throwing them overboard.

Mr. Coogan

I never said they were pension racketeers.

Mr. O Cléirigh

I quite agree, but it has been said by speakers generally, who will now shed crocodile tears for the men of the Old I.R.A. who are not being treated fairly by the Bill and have not been treated fairly by the Government. Will any Opposition member admit that there is a great need for a Bill of this kind or some such kind? Will any of them admit that the position must be put right in some way? Will they admit that there has been no case brought before the courts yet by a man who has been awarded a pension complaining of the illegality that he was not heard in the presence of the Referee? Will they admit that if the men who took their cases to court had got their pensions allowed in the illegal manner in which they now claim they were heard, they would never have gone before the court?

Is it not true that it is not a complaint arising out of the manner in which they were heard and not a complaint against the illegality of the Referee not hearing them, but a complaint against their failure to succeed in impressing on the advisory committee, and, later, through the advisory committee, on the Referee, that they were entitled to a pension? Is that not the reason for the complaint? They have taken this way of bringing that complaint to the notice of the public and putting the board in a hard spot. Will the Opposition not admit that every applicant who has gone before the board under this particular system of hearing and who got an award can have that award set aside by applying to the court and emphasising the fact that it was illegal? Is the Government to leave itself in the position that the thousands of applicants who have been awarded pensions may bring the Minister before the court, and, at the expense of the State, get the award to them of pensions declared illegal? Incidentally, are all the thousands who have been refused a hearing and a pension to be allowed to go before the court so that it may declare the matter was illegal? Test cases have been brought before the court which indicated that, to some extent, the applicants were not heard in accordance with the terms of the Act. The Minister, I think, would not be acting up to his responsibilities if he did not seek to put that position right, and thereby save applicants a considerable amount of expense and worry. That would be the situation if he allowed the position to hang fire without any definite idea as to what was to happen in the future. The men to whom a great injustice was done by the recent Supreme Court decision, the men who had failed in their claims, are to be put in the position again of being able to go up, at their own expense, for a rehearing of the evidence on which they were turned down in person by the Referee. I presume there would be the same inevitable result on the rehearing since they did not succeed before in proving that they had active service. I imagine that only a very small percentage of the men would seek a rehearing. They surely do not want it on the same terms as before.

General MacEoin

Why not give them the chance?

Mr. O Cléirigh

If the rehearing is to be on the same terms as before, I do not think it would be fair to put the men to the expense of going up for it.

General MacEoin

If they are prepared to take the risk why stop them?

Mr. O Cléirigh

I think they are not prepared to take the risk, and that it is not fair to be holding that carrot to them any longer. Deputy MacEoin, who is genuinely interested in the welfare of those men, would, I think, be better employed if he tried to impress on the Minister that the value of their evidence before was not properly assessed, but that under this Bill men who had given service that was necessary and essential to the movement and the Army are now entitled to rehearing.

Mr. Coogan

Only 74 of them.

Mr. O Cléirigh

Men who can-put forward genuine claims and give proof of service are entitled, under the Bill, to a re-hearing. Deputy MacEoin will admit that such cases are being re-heard every other day. I would suggest to the Deputy that he should confine his attention to that aspect of the question rather than be pretending that the recent decision of the Supreme Court was in favour of the men whose claims have been turned down. The opposite is the case. It is the assessment of what active service is that has operated against men in the past and will do so in the future. Surely, the Deputies who have spoken were not serious in suggesting, in the McCarthy case, that Mr. McCarthy, having given evidence, should have had an opportunity of cross-examining the verifying officers who came to give evidence on his behalf. If that system were to prevail, how long would the hearing of every case take—that is if a solicitor or barrister for an applicant had the right to cross-examine the applicant's verifying officer? Is it not true that no one, as far as I am aware, has gone to give evidence in a claimant's case except the man chosen by the claimant himself or by his unit? And, surely, such a person is not going to give evidence antagonistic to a claimant, but rather in favour of him.

Why should the claim be made by Deputy Coogan that Mr. McCarthy did not have the chance of examining witnesses on his behalf? Why even under the much boosted 1924 Act applicants had not that opportunity. I do not want to cast any reflection on that particular Act. The times were different then from what they were in 1934 when the 1934 Act was passed. The two Acts are on a different footing and everybody knows that it is ridiculous to compare the two. But, if the 1924 Act is the wonderful measure that the Deputies opposite claim, and if they think that applicants should have the right to examine their witnesses, why did they not seek to get that power put into the 1934 Act when it was going through here?

I think that the number of men who have been unjustly treated is not so big at all. I do not think that any bigger number than 3,000 has been unjustly treated under the 1934 Act, and mind you that unjust treatment was not deliberate. If there was anything wrong with the 1934 Act it was that applicants coming forward, after a long period of years, were not assisted by the advisory board. I admit that it would be difficult to do that and that it might be wrong. Advantage was taken of slips and mistakes made by applicants, and these slips were marked up against them. It is not that the members of the advisory board were not sympathetic with the exception of, possibly, one. They were sympathetic, but advantage was taken of the written or the spoken word of an applicant before the board. Afterwards there was no opportunity given to verifying officers to put those blunders or mistakes right, and it is because of that, that in many instances injustice has been done. Everybody who has had experience as a verifying officer knows what the difficulties are. It may be an unkind thing to say but, listening to Deputy Norton, I got the impression that he had not any experience as a verifying officer. If he had he would not have made half the statements that he made here to-night. Undoubtedly, mistakes were made, but there is time before December, 1945, to put them right and to give the men again a fair chance under the provisions of this Bill and of the 1934 Act.

I think that justice must be done to the men who have succeeded in their claims by legalising their awards under this Bill. I hope that Deputies in the Opposition Parties who are interested in those men will help by seeing that the position is legalised. That is one of the aims of the Bill. Deputy Coogan, and other members of his Party, want a committee of the House set up to consider the position. Will they tell us if the Fine Gael Party, with all the legal assistance they have at their disposal, have set up a committee within the Party to consider the position? If they did so, they would have the aid of Deputy MacEoin, a distinguished Old I.R.A. man. Have they set up such a committee, and what steps have they taken to see how the position can be remedied and justice done? Have Deputy Norton and the members of his Party done the same, and what remedy have they to propose? Has Deputy Cogan done likewise? If the Parties opposite have not done that, what right have they to come in here and suggest that the consideration of this Bill should be deferred until a committee of the House has considered it? The members of this Party have gone to the trouble of setting up a committee. We take a very serious view of this matter. The committee agreed that the Bill is absolutely necessary. They also agreed that justice can be done to the genuine claimants in whom we are interested under the 1934 Act. It is our intention to see, as far as we can do it, that justice will be done. I challenge the Opposition Parties to say that they have done likewise. Yet, they come in here to find fault with the Bill, and all for the sake of making political capital out of it. I think that we have done our duty by the Old I.R.A. We have taken steps to remedy the mistakes that have been made, and we are going to do that now with the assistance of the Minister. If injustice has been done under the 1934 Act, and if advantage has been taken of mistakes made by applicants, then we will remedy these injustices.

Debate adjourned.

The Dáil adjourned at 9 p.m., until 3 p.m. on Thursday, 15th February, 1945.