I am not giving way. I am giving this is as an example. It cannot be disputed as an example of retrospective legislation in which a decision of the court which would have involved certain consequences, if left standing, was, as far as the future was concerned, set aside, and the law as it was declared by the court to be was, by the Legislature, said to be the law no longer, not merely to be the law no longer, but it went back into the past and said that the law as interpreted by the court would have involved consequences, that these consequences would no longer follow.
That is one example. I will give the House another. There was at one particular period the question of copyright here. The case was brought, I think, against the Bray Urban Council. The people who held that they had the copyright alleged an infringement of it against the Bray Urban Council. The court of first instance decided in their favour, saying that the copyright had been infringed. The matter was appealed to the Supreme Court, and it said that there was no copyright at all existing in this State.
Therefore, there was no right at all possessed by anyone that could be infringed, and, therefore, the Supreme Court overruled the court of first instance. It would, of course, have been a rather nasty situation to find that there was no copyright here. We would be in a rather strange international situation. The public interest demanded, and the Government of the day did not hesitate to have legislation brought in that would have retrospective effect. Remember that the Supreme Court said that there was no copyright in the State. That was the Supreme Court decision. Of course, it was not an absolute Supreme Court in those days. In those days a case could be taken a step further over to the British Privy Council. However, the Supreme Court in this land anyhow said that there was no copyright. What did the Government of that day do, and what did the Legislature of that day do? The Government, notwithstanding that the Supreme Court had said that there was no copyright here, passed an Act saying that there is, and there shall always be deemed to have been copyright here. That was in violation of and directly contrary to the Supreme Court decision. Were they wrong about that? Should the Executive of that day and the Legislature of that day have allowed that chaotic situation to stand, or were they to do what they had a right to do, come into Parliament and ask Parliament to set it right? Now, the only way in which they could have set this right generally was the way in which they did it. They said: "Notwithstanding that the Supreme Court has said that the law is that way, the Legislature say the law shall be deemed to have been different." Not merely that, but they went a step further and said: "Although the law shall be deemed to have been that, nobody under the law as it is deemed to be shall be able to take action against anybody. No action may be taken against people who have violated it." On the one hand, they said that the law should be deemed to have been something contrary to the decision of the Supreme Court and, on the other hand, they said: "The law shall be so and there shall be no redress against anybody who, under the supposed or deemed position of the law, shall have transgressed it."
Now, is anybody going to say, or did anybody say at that time, although it was retrospective legislation of a very peculiar kind—of a unique kind, as there was a unique situation here—that the Legislature was incompetent to do that? Did anybody run around and say that under the new law, as they put it, the retrospective effect meant that certain people were being deprived of the right of action? No, there was not a large number of people concerned and there was not a large number to be appealed to, to try to bring them in on the side of a political Party. The fundamental justice of that situation was understood. There was no political Party gain in trying to misrepresent. That is not the position here, apparently. Fundamentally, that type of legislation was far more drastic and far more universal in its character than the legislation proposed here. Was Parliament competent to do that? Did anybody deny that it was the duty of the Legislature in those circumstances to bring in an Act of that kind?
In our time, we had a case of a fire breaking out accidentally in a mills. This fire spread and the schools were burnt down; the owners of the schools took action under some old Accidental Fires Act of 1750 or some such date and brought the action successfully. As far as my recollection goes, it depended largely on the question as to whether a factory was a house or not. Protection was given to householders under the old Act, by which they would not be liable to their neighbours for the accidental spread of a fire. It was held that a factory was not a house and the result would have been, if the law were left in that position, that every person who had a factory from which an accidental fire spread would be held liable for the damages, in the same way as the Athlone mills were held liable to the schools' owners. That was not a proper position. It was a very old Act and factories had not developed when it was passed. It was clearly not in the public interest that the law should stand in that position.
The Legislature intervened and said that, although that has been the law, it should be the law no longer and the protection formerly given only to private houses was extended to factories. The Legislature said: "With regard to cases that are pending, they are to be voided and are to be debarred from going ahead." People who, like the owners of the schools, had been affected by a fire were by law prevented from going to the courts to obtain damages which they would have got had Parliament not intervened. Just as is done in this case, the particular case was allowed to pass and the damages awarded to the schools, having been obtained in court before the Legislature had spoken and before an announcement of the Government's intentions was made, were allowed to pass. The one bite was given, but the Legislature said that no other bites of that sort should take place. Was that action, though it had retroactive and retrospective effect, an improper action, was it ultra vires, was it against the public good? What was in that action which would call out for a declaration, such as we have here now, that it was contrary to the constitutional rights of the citizens, that it was undemocratic, that it was unfair and unjust? It was passed by this House, though it was of a retrospective character, with the full authority of the House and the concurrence of at least the majority.
I could give more examples. There was a Land Act in 1926, there was a Finance Act, there was a Courts of Justice Act. In fact, I am perfectly certain that careful study of the Finance Acts and the Land Acts would produce more examples. There is nothing strange or novel, nothing unconstitutional or undemocratic, in this action by the Government in bringing in this Bill. It is our right here to make the law conform to what we deem to be the public interest.
Every legislative act of ours in some manner or other disturbs the existing rights of individuals, and that is necessarily so, since it is an adjustment of the rights of individuals in the general public interest. I hope that I have disposed of two points so far. First of all, I repeat that there is nothing unconstitutional in what we are doing. I have said that we could not, if we tried, do anything unconstitutional, since anything that would result from that action here would be declared null and void. Secondly, I have shown that what we propose here is not anything novel or strange, it is not anything of the kind Deputy O'Higgins would like Deputies to believe it is— some subversion of rights, something that would bring Parliament into contempt. If it were such as to bring Parliament into contempt, then every Parliament in the world would have been brought into contempt, as every Legislature at one time or another in its history has had to do something such as we are doing now.
Everybody knows the position of an Act of Indemnity. War situations and civil conflicts are generally followed up by Acts of Indemnity to deprive people of any redress in respect of wrongs which, under the existing state of the law, would have been deemed wrongs against them. Again, Acts of Indemnity are a necessary feature of practically every Legislature in the world at some time or another, if the Legislature in question has lived over any number of years during which there has been war or civil conflict. As I say, I hope I have demonstrated to everybody that there is nothing unconstitutional and nothing novel in what we propose to do.
The next thing is to try to deal with the misrepresentations of what we propose to do. What is it that we propose to do? Deputy McGilligan at least kept near to that point. We will have to say, at any rate, whatever views he may have expressed about the wisdom or the justice of this, he has not at any rate tried to misrepresent it in the main. What is it we are trying to do? This Bill, in its essence, is simply making valid a procedure which was adopted over a period of ten years in which some 60,000 applications were dealt with. That is what it is. It is called an amendment of the law. Why? Because the law, according to the interpretation of the Supreme Court, its interpretation of a certain phrase, is declared to be contrary to this procedure which has been followed over a number of years and has been used, and we believe fairly used, justly used, honestly used, to deal with these applications. We are simply saying that that procedure shall be deemed to have been proper procedure. We have not said so in so many words.
One would imagine that you could deal with the matter in a single phrase or two and that this apparently long, strange-looking Bill would not have been necessary. But we know that, once a decision of that sort was given by the court, once the question of procedure was questioned by the court, then every one of the 60,000 who felt that the procedure did not give them everything they thought they should have got could go to the courts and, on the ground of faulty procedure, have got an order such as the orders that have been made. Were we to stand back and allow that to happen? Is it in the public interest that it should happen? Remember, the only thing that the court has said is that the procedure which has been adopted was not, in their interpretation—and we must accept that as the final judgment as to what the state of the law was— in accordance with the Act.
I am not going to make light for one moment of a departure from procedure. If a procedure was laid down in an Act and if that was the intention, or even if a court, whether it was the intention or not, declares it to have been the expressed intention anyhow, as far as can be gathered from the expression of it in an Act, I am not going to say that a departure from such procedure as indicated by an Act of Parliament is a light thing. It is not a light thing. Assuming that Parliament desired that a certain procedure should be followed and that a certain administrative or quasi-administrative judicial body was set up, then I admit at once that that procedure should not be, if the law was unmistakably clear, departed from. I only say that, as interpreted by the courts, it has been departed from. But I deny that it was departed from wilfully, neglectfully or arbitrarily. I am not going to state that I, as a layman, in this Legislature, interpreting that Act, would not have said —I shall try to prove later that the action of the Referee is supported not merely by other Referees but by independent judges—that the procedure which was adopted by the Referee was, in fact, the procedure which might very well have been the intention of Parliament. I certainly would not as a member of this Legislature and a layman—I admit I am not a lawyer— have said that, when the advisory committee were to sit with the Referee, they were to sit bodily and corporally with him; I would have naturally come to the conclusion that that meant associated with him in this particular matter.
On whom is the responsibility for a decision placed in the last resort? The responsibility for a decision under that Act is based on the Referee and the Referee alone. Does anybody deny that? Nobody can deny it, because it has been set out clearly, it is well understood, and it has never been questioned by any of the applicants in the court that the Referee was the final judge in determining whether a case came within the law and whether a pension should be awarded or not. Is it a strange thing for me as a layman to say that sitting with them did not mean corporally sitting with them, sitting with them in the one room? I say that the position of these was that of assessors in the main, that that was the real intention of Parliament. I am not able to go back to know what my view of this was at the time; I have no means of knowing it. I had some of the debates here looked up to see what was the intention of Parliament at the time. Remember that Legislatures often pass laws which have consequences very different from the consequences anticipated and that if these consequences go in a direction very different from what was expected, the Legislature has a right to amend the law so that it will go in the direction which was intended. If I as a layman had been asked: "What is your view of that provision," I would have said that it did not mean that the committee had necessarily to sit corporally with the Referee. I would have said that this advisory group, on account of the manner in which they were set up, had nothing whatever to say to the decision of the Referee, that the Referee could turn a deaf ear to every suggestion that they made to him; that he could have ignored every suggestion that they made to him and still fulfil his duties under the Act. The decision was his. They were to advise and to help him. If a person is given advisers or helpers, that person expects to have some discretion as to how the help should be given to him so as to produce the best results. And if the Referee considered that at a certain time they could best help him in the proper discharge of his duties by dividing themselves, say, into two groups and sending their recommendations to him on paper, on a file, then he would be justified in so arranging it.
Of course, the Supreme Court has given a decision and it is only concerned with the interpretation of the law as it is. It is not the concern of the Supreme Court or of any court what are to be the consequences to any large extent of its decision. The court may say what is the plain, unambiguous meaning of the phrase. They will say to themselves: "We have no need to speculate as to what is the intention of Parliament. We have only to interpret the phrase that is there and, if that interpretation is not in accordance with the intention of Parliament and is not in accordance with the general good, then it is not our business as a court to set that right. There is a way in which it can be set right and, because there is a way"—the way we are adopting—"then we as judges will keep to our own proper job, which is to interpret the law as we find it and not to try to think how the law should be, either to be practicable in its application or otherwise to be for the general good." They naturally say to themselves: "To do that would be a usurpation on our part." And it would be. Everybody knows what the court's duty is. Everybody should know, and many of the people who are pretending that they do not know, know full well what is the duty and on whom the duty lies to look after the general public interest and to right the law if the law is wrong.
Although the court has said in this year, 1945, that what was intended by Parliament was that he should sit corporally with the rest of the advisory committee, I say that until that decision was given it was open to every Referee that we have had to take the view that he did take. I want you to remember that these referees were judges—most of them. These were judges who had some knowledge of how to construe statutes and the principles that underlie constructions of that sort. These three judges, independently, having a practical task to perform, naturally took the most liberal view of the statute, which was of a beneficial character, so as to enable their work to be performed in the public interest with the greatest expedition that was consistent with fair play to all the claimants.
It is said by the Deputies opposite that we should have a full court, that we should have a hearing approximating to that of a court. I say that was never intended by the Act. There was no provision made for the absence of some members of the Advisory Committee, no provision made for a quorum, nothing in fact which would indicate that it was the intention of the Legislature to have it set up as a court. If it had been set up strictly as a court, and if full court procedure had to be adopted, I say we would be all dead and buried, and most of the claimants too, before the 60,000 cases could have been adjudicated upon.
I was called as a witness in one case and I must say I was surprised when I found that the Referee himself was sitting with the Advisory Committee as if it were a court, with lawyers pleading the case. That case, in which I was a witness, lasted, I think, three days for the hearing. It took the Advisory Committee more than a month to analyse the evidence that was given by the witnesses and to send in their report. I do not want to pretend that they did nothing else in that time but, although this was a case in which it was desirable that a decision would be reached as quickly as possible, this one case, with the court procedure that seemed to have been adopted in that one case, took three days for hearing and a month for the Advisory Committee to analyse the evidence and present their report to the Referee.
It has been suggested by Deputy McGilligan that all these figures are nonsense, that we have a very simple case here to deal with. I say we have not. We have an extremely complex and difficult matter to deal with. The whole of these pensions was an extremely difficult thing to deal with. He says the years that have been suggested are exaggerated. Very well. A simple little calculation will help us to get, at any rate, some idea of the time. I will admit that we have to go on rough averages. Suppose we say that this Advisory Committee with the Referee were able to dispose of ten cases a day—and I should like to see how many courts in the land will dispose of anything like complicated matters at the rate of ten cases a day —and suppose we make this Referee a particularly healthy vigorous man, and all the members of the Advisory Committee equally healthy, and not likely to be ill or anything of that sort, and that they sat for six days a week, and suppose we give them, say, a fortnight's holiday in the year, that will give us, say, 300 working days. At ten cases a day, that means that you dispose of something like 3,000 cases in a year, and 60,000 cases to be disposed of would mean that they would be 20 years in dealing with them.
