When the debate on this amendment was adjourned last night, I was trying to deal with some of the objections which the Minister put forward against the acceptance of it. So far as I could follow the Minister, he objected to the word "findings" in the amendment. If that is all the Minister has to object to, we are quite satisfied to allow the Minister, instead of the word "findings" to insert the word "report" or the word, which he seemed to prefer himself, "observations". The amendment is a simple straightforward proposal. It seeks to secure that the proceedings at an inquiry shall be conducted in accordance with the rules of evidence and, secondly, that the report or observations of the inspector who conducted the inquiry shall be made public within three months. I do not think there is anything unreasonable in that. Not only do I think there is nothing unreasonable in it but I think it is absolutely fair, and if justice is to be meted out to the person or persons arraigned before that inquiry and who may be penalised as a result of the inquiry by the Minister, I think it is quite reasonable to ask that there should be some rules governing the procedure to be followed and that the report should be made public. Some time ago we had what I might call an outcry in this city —indeed it was not confined to the city —in connection with the Cork Street Hospital Inquiry. I think it true to say that not only the board concerned in that inquiry and in the Minister's decision, but a considerable body of public opinion, thought that the board had been unjustly treated and that there were no grounds——
Local Government Bill, 1945—Committee (Resumed).
Mr. Morrissey
Is the Deputy in order.
Mr. Morrissey
Would the Minister get up and raise any point of order he wishes?
I am suggesting that if the Deputy goes much further on that line, the whole matter will have to be debated on the section.
Would that not be a good thing?
If the Deputy wants to do that, let him take the responsibility of putting down a motion and we shall deal with it.
Mr. Morrissey
I am trying to make my case for the amendment. The amendment asks that reports or observations made by the inspector holding the inquiry shall be made public. Surely I am entitled, with all respect to the Minister, to give an instance where not only the board concerned but the general public, the taxpayers and people who are concerned with the institution in Cork Street, believed, rightly or wrongly, that the Minister's decision in the matter was not a just or fair decision. I am not saying whether it was or not. I do not know because the report upon which the Minister's decision was based was not published. The Minister suggested that, in coming to a decision on the evidence, he was not influenced in any way by the report or the observations of the inspector. That is the suggestion he tried to convey to the House last night, that the decision was based solely on the minutes or verbatim report of the proceedings. I cannot accept that. We can remember some prolonged inquiries held within recent years—the Limerick one was mentioned last night, in connection with another amendment. It lasted for 30 or 40 days; a great volume of evidence was taken; very many witnesses were examined and I am perfectly satisfied that that evidence itself, without the report of the inspector, would not have enabled the Minister to come to a clear-cut decision on the matter. The Minister stated emphatically last night that there was no difference between the present system of holding inquiries and cases conducted in the courts before judge and jury.
I did not.
Mr. Morrissey
I say the Minister did—and I was listening to him and following him closely. Not only did he say it, but he repeated it and, feeling he had something very good, he rolled it over and over. I suggest that there is something in the judge and jury method which we do not get here, the difference being that the person who is charged in court is present and can hear the judge's charge to the jury. The judge points out to the jury the value or otherwise of the evidence which has been tendered in the court on the case and tells the jury what they are to take into account and what they are not to take into account.
So my inspector is to tell his Minister what the Minister has to do?
Mr. Morrissey
No, certainly not. The Minister is touchy about his authority and does not want to see it encroached upon.
It is about the authority of the House and the Government of the people that the Minister is touchy.
Mr. Morrissey
No one is trying to encroach on the authority of the Minister, but there is such a thing as the rights of the people, the rights of the citizen and the rights of a board conducting, within its own sphere, part of the work of this country. We are not going to admit that Government authority or Ministerial authority can override all other rights—that is the difference between the Minister and ourselves. I do not admit for one moment the Minister's contention that acceptance of the principle in this amendment would in any way encroach upon his authority. Nobody here wants to take away from the Minister the right to come to a decision, but surely we are entitled, and the public are entitled, to know the grounds upon which that decision is based.
If a decision is reached by a Minister on a report which is known only to the inspector and to the Minister himself, surely that is little short of Star Chamber methods? When one considers the penalty and the effect of a Ministerial decision on an official or officer, or even, indeed, on the members of a public board, one begins to wonder why even the Minister himself cannot see the justice of what we are putting forward. Now, I am afraid that the Minister's attitude in regard to this amendment, as in relation to a number of other amendments, is founded on the fear that there is a desire here to take away from his Ministerial position the authority which he is legitimately entitled to exercise. There is no such desire, but it is the duty of members of this House, when passing legislation, to see that we do not put into the hands of the present Minister, or any other Minister, an instrument which can be used unfairly against either an individual or a public body. It is in order to safeguard the interests of people who may be charged in that way that this amendment is framed. There are just two points in it—that the procedure shall be in accordance with the rules of evidence and that the report or observations of the inspector shall be made public. It is a very reasonable demand and there is no necessity in the world for the Minister to be apprehensive or to get annoyed about it.
I have got a feeling that the line the Minister adopted in connection with the Cork Street Hospital Inquiry, and his refusal to publish the report of the inspector in that case, has led him to dig his heels into the ground in regard to this whole Bill. I do not think he is doing himself justice by that attitude. He would be on stronger grounds and his authority and that of the Government would be reinforced if he were to say, in every case where he finds it necessary to hold an inquiry: "I will publish the report of my inspector on the facts as ascertained by him; I will come to a decision on the evidence submitted to me; and, recognising that I am answerable to the Dáil and to the people, I will say on what grounds I came to that decision." The Minister must recognise that, under the Constitution, he is responsible to the House and to the people; but, for some reason or other, he does not want to disclose to the House and to the people the grounds on which he comes to decisions.
Is it unreasonable for the House to say to a Minister whom it elects to a responsible post in charge of a State Department: "When you come to decisions, you ought to tell the Dáil the reasons which induced you to come to them"? Is it unreasonable of the House to tell the Minister that he need not be afraid or ashamed to tell the people the reasons which induced him to come to certain decisions? After all, the House elects the Minister on the assumption that he is a responsible and capable person, capable of weighing evidence and unafraid in the discharge of his duty. Therefore, if the Minister finds it necessary to make a decision, of a disciplinary character or otherwise, surely he must have had some reasons to influence him in that particular direction?
If these reasons operate in his own mind to compel him to take a certain decision, what is the reason for the Minister's refusal to pull back the curtain and let the public and the Dáil see the mind operating in arriving at a particular decision? The Minister takes the view that he must hide the inspector's report, although the inspector's inquiry has been conducted at the public expense; that he must not, under any circumstances, permit the Dáil, the Parliament of the people, or the people themselves, to know the contents of the report furnished by a public servant, and that the Minister is entitled, within the recesses of his Department, to come to a decision and, beyond saying "It is my decision", not to disclose the reasons on which that decision was based or do anything to enable the Dáil to ascertain whether the facts as reported by the inspector justify the decision of the Minister in any particular case.
I think our democracy will be all the healthier if we do things publicly rather than by stealth. What the Minister is endeavouring to do is to justify an attitude in which, privately, without any observation by the Dáil, he may come to decisions which affect the future, the whole career and, perhaps, the character of servants of public authorities who may, for all we know, be innocent, because the House has no opportunity of judging the evidence on which the Minister bases his decision.
The Minister says he has to safeguard the authority of the Minister and the authority of the Government. I take it he is not concerned only with safeguarding his own special authority as the present Minister for Local Government; that he is not concerned really with safeguarding the Government. It seems to me that in his desire to safeguard the Minister for Local Government and the Government, the Minister is endeavouring to create a situation in which, apparently, the ordinary citizen is to have no rights when a particular Minister, subject to all the frailties to which the human race is heir, comes to a decision in a particular case. Has the citizen no right against the Minister? If there is a clash of opinions and a clash in the evidence as between the Minister and an honourable citizen, must the honourable citizen fall lest the majesty of the Minister become in any way smudged? That seems to be the proposition which the Minister is endeavouring to defend.
The ordinary citizen will be concerned with truth and justice in this matter and we ought to be concerned that that ordinary citizen gets a fair trial. I do not think even the Minister's own Party would stand for downing an ordinary citizen, merely because the Minister erroneously exercises judgment in a manner calculated to harm an innocent citizen. In a matter of truth and justice the Minister ought to have no superior authority over any citizen. He ought to stand level with the citizen in the matter of truth and justice. But here in this Bill the Minister is seeking to establish for himself and the Government a position in which there must be a security silence thrown over the report of the inspector and the Minister's reasons for coming to a decision, lest the citizen might, in the exercise of his rights, worst the Minister in a contest as to where truth and justice ought properly to lie.
The Minister has given no reasons whatever, except the artificial and unconvincing reasons that if you disclose the inspector's report you, in some way not clear to anybody except the Minister, undermine the authority of the Minister. I think the Minister's authority would be reinforced by disclosing the inspector's report and then letting the public and the House know the reasons on which the decision was based. If the Minister will do that, I think he will be helping to create a much healthier democratic atmosphere and spirit throughout the country and, so far as he is concerned, he could rely on public opinion to take its stand in support of him if they felt he was right and, acting on their legitimate constitutional rights, to criticise him if they felt he was wrong.
This amendment seeks to apply the rules of evidence in connection with these inquiries. Apparently, that is not acceptable to the Minister. Everybody has accepted that the rules of evidence are a fair code of conduct in the matter of trying persons where their livelihood and liberty are at stake, but the one Department that wants to abandon the rules of evidence as a fair code of conduct is the Department of Local Government. It says that these are a handicap to the Department. They cannot be if you are concerned with abstract truth and justice. They can only be a handicap where you want to do a job on a local authority or hammer a job on an individual. If you are concerned all the time with truth and justice, there is no reason why the law and the rules of evidence ought not to be permitted to operate, especially when the livelihood of ordinary citizens is at stake.
If the Department is concerned only with ascertaining truth and applying justice, then reliance on the rules of evidence will not encumber it in the slightest way. If the Minister feels that the citizen employed by a local authority should get as fair a trial at the inquiry as he would in the courts, and as he is entitled to, then he ought not to hesitate in accepting this amendment.
I think, after the speech to which we have just listened, we ought at least to require responsible Deputies to read the text of the proposition which they are discussing. Deputy Norton has stated that the Minister proposes to change the law, to make what is described here as the report of an inspector a confidential document, to cover himself with a cloak of secrecy, to try to withdraw these things from the public gaze. I have not sought to do that. That is the allegation which has been made by Deputy Norton and the Deputy did not produce one single fact to substantiate that charge. Does the Deputy know what the law is?
The Minister has quoted it; he has told us about it.
The law has been settled for a generation and more in relation to the reports or the proceedings of sworn inquiries. It is not the Minister who wants to change the law, it is the Deputy who is responsible for this amendment, because, if the law is that these reports or documents or whatever they may be can be published, why is it necessary to put down the amendment? The present position of the law is unchallengeable. It has been defined and tested in the courts and in practice and the sole justification for this clamour on the part of the Opposition and others is not the public interest because they think that if they can compel the publication of the observations of an inspector it is going to be a political score for them——
Not at all.
There is not a statement in Deputy Norton's speech that could not be traversed and could not be shown to be without justification and without substance. No person who may be damnified as a result of an inquiry, and the Minister's findings on an inquiry, is without a remedy. The debates which have taken place here on certain provisions of this Bill show that. The fundamental position in regard to these matters is that the Minister concerned is responsible to Parliament, that he does publish his findings and, despite what Deputy Norton says, publishes not merely his findings but the considerations which have moved him to arrive at those findings, and the evidence upon which those findings are based. Cork Street has been mentioned in this matter. Here is published in full for the public information, and for the information of any person who is concerned, all the evidence that was taken at the inquiry.
Not the report.
This volume contains all the facts. The evidence and the facts are there for anyone who wants to read them.
Mr. Morrissey
The inspector's report?
The evidence and the facts are there for anyone to read. It has been alleged by Deputy Morrissey, and, subsequently, by Deputy Norton, that the facts are withheld from the public. There is the refutation of that inaccurate and untrue statement.
Mr. Morrissey
I have been accused of making an untrue statement. May I again, in response to that, say that I mentioned the inspector's report?
No, the Deputy said that the facts were concealed.
Mr. Morrissey
I am accused of telling lies. I am used to it.
This phrase "inspector's report" has been used loosely. It is the Minister's report. It is the Minister's findings which are embodied in what is known as the report. The only document which is effective legally is what the Minister decides. That has been already determined.
Mr. Morrissey
That is a dictatorial attitude, of course.
That has been determined in the courts.
Where? In what cases?
In several cases. The Law Report has been circulated to Deputies and they can study the facts, if they wish.
Mr. Morrissey
When?
There are the facts. It has been alleged this morning, and perhaps will be reported in the newspapers, that the facts are being concealed from the public. The facts are here and are published at the public expense for anyone who wants to study them. It was also stated that the Minister when publishing his findings, did not state the considerations which led him to his conclusions. Here again is refutation of what Deputy Norton said. Here again are the considerations which moved the Minister to dissolve the Cork Street Fever Board. There is the report; there are the findings, and the considerations on which these findings are based.
Mr. Morrissey
The report is not there?
I said that there was not legally any such thing as an inspector's report. I have shown that, as far as practice is concerned, we are following what is settled in law. The Deputy alleged that I want to change the law, so as to shroud these proceedings in greater secrecy. That I have shown to be untrue. What is proposed here, in Deputy Coogan's amendment, is to change the law in a significant and vital particular, which would relate not merely to whatever document contains comments made on evidence at the inquiry, but to other papers. If there is one thing well settled in law also it is that every communication to a Minister by a servant or officer on a departmental file is a privileged document.
Communication?
Every communication from an officer to his Minister relating to official business is a privileged document. Every memorandum addressed to a Minister is a privileged document, and is not to be published except with the consent of the Minister.
Of Parliament? Surely the Minister agrees that Parliament will require documents put in in evidence.
I will deal with that later. I am on this precise point that, as the law stands at present, no person can—even the courts themselves have refused to do so—require a Minister to produce any document addressed to him in an official capacity by one of his officers. That is the position. It is incontrovertible. Who proposes to change the law here?
Parliament.
Precisely. With what consequences? Once you accept this principle you cannot stop. Every file in a Government Department is to be open to the public gaze.
To Parliament.
The proceedings of Parliament are public. Perhaps the Deputy was thinking of a star-chamber. Perhaps he wants to convert this into a star-chamber. We know very well the mentality which still dominates the Party opposite. Perhaps they want to create a position here in which you will have, on the one hand, a Minister and, on the other hand, a civil servant who will be the object of public debate. That is what the Deputy is trying to do. The whole procedure is to try to erect what has been described as bureaucracy, the Civil Service, to a position of independence of the Ministers and, being independent of the Ministers, independent of Parliament, and of the people. That is what is at issue.
What about the evidence of that?
The evidence of that is statements made here, statements which are on the records, when the Deputy was running around this country in a blue shirt.
Stick to the amendment.
Blue shirts have nothing to do with this question
We will have another fortnight on this Bill. The Minister is revelling in it.
I was saying that this is a demand for the publication of a communication which, in certain circumstances, civil servants or officers might address to their Ministers. You cannot stop at that. If you were to accept that principle in relation to one matter, you would have to accept it in relation to every other matter. Of course that is the purpose behind the amendment. As to those who have been talking about democracy during the week, and who have been describing me as a dictator, their real purpose is to try to shackle the Minister, to make him the instrument and figurehead of his Department, instead of being what the Constitution prescribes, and what Parliament and the people expect him to be, the effective head of his Department with a right to come unfettered, except by law, to decisions in regard to any matter which his judgment tells him are wise decisions. That is what is at stake. How could a Minister come to an unfettered decision, how could he act in the free exercise of his judgment and opinion, if he knew that he was going to have to justify that judgment in face of observations made by an officer of his Department?
The highest court in the land has to do that.
How could an officer give to the Minister free and unbiased advice if that advice were going to become the subject of discussion here in public debate? How could he do that?
Be careful now. You are on dangerous ground now.
Would he not be in the situation that he would know that some people would allege that either he was the tool of the Minister or else that the Minister was a tool of his? Is not that the position? If our system is going to work and going to continue, we cannot have more than one person responsible in the public eye for what a Minister does. This amendment would make the Minister not merely answerable to Parliament but answerable to an officer in his Department.
Answerable to the law.
No. That is not what is here.
Oh, yes.
That is not what is here. If Deputies have put down amendments, would they at least realise what they are? This amendment asks, among other things—it asks something else as well—that the findings of the inspector upon the evidence tendered before him shall be made public within three months from the date upon which the inquiry terminated. What is the purpose of that? What purpose is sought to be served by that, except to set up the opinion of an officer of the Minister as against the Minister's decision? Is not that the purpose of it, so that those who are in political disagreement with the Minister may challenge the conduct of the Minister if the Minister ventures to override the judgment of his own officer? Is not that the purpose of that? Has it any other purpose than that? I contend that, so far from serving the public interest, if the Dáil were to be sufficiently misguided to adopt this, it would tend the other way because, remember this: the Minister is head of the Department and if any question of conflict arose between the Minister and his servant the Minister might have political embarrassments in dealing with the misrepresentations of the Opposition, as he has had continuously during this Bill, but the position of the civil servant would not be a very comfortable one either and he might be very careful before tendering any advice to his Minister to try to find out what sort of advice the Minister would expect him to give so that this public conflict would not arise between himself and the Minister.
He is making the case for the amendment.
I am not. I am pointing out that, so far from getting the unbiased and unfettered advice or observations of any officer, a proposal of this sort will tend to make the officer very careful to ensure that his opinions and the views which he expresses coincide with the views that the Minister may hold. That is in fact a real danger. The best way and the only way in which this can be decided is that these documents should continue to be regarded henceforward, as they have always been, as confidential. They have always been regarded as confidential and privileged and the courts have declined to require the Minister to produce them. That is the position and that is the position which I hope this House will maintain. That is why I hope it will reject this amendment and end this thing once and for all.
Let me say this, that the person appointed to hold an inquiry is an officer of the Minister. He is not, however, the only officer who is responsible for considering the evidence. We do not go to the trouble of having a verbatim report of the evidence prepared merely for the comfort and guidance of the inspector. The evidence of all these inquiries is studied by several minds. Some will point out the significance of certain things that are said; others will perhaps find other aspects of the matter that require attention and consideration. It is as a result of the collation of all the facts which are published and which are before the Minister and his own individual study of the evidence that the Minister comes to a decision and publishes his findings. This thing is not done in an arbitrary way.
I hope not.
This thing is not done in an arbitrary way. As a rule the inspector is a senior officer of the Department but there are officers of higher rank above him who have to be satisfied that the inquiry has been conducted fairly, who have to be satisfied that any observations the inspector may make on the evidence are well founded and who have to study the matter independently for themselves. A reference was made here to the report of the Limerick Gas Works Inquiry. There was a considerable delay in the publication of that report. That delay was due entirely to the fact that practically every page of the transcript was closely studied by several officers in my Department and the great bulk of the evidence, such as was relevant, was read by me.
Some reading.
Some reading, yes, and that applies to every important inquiry, but the issues were such that before I allowed any findings to go out, before I arrived at them, I took pains to satisfy myself, as I always do, that they were well founded and they were, from that point of view, my findings, arrived at after discussion of every aspect of the evidence with my senior officers and fully armed with such observations as the person who held the inquiry on the technical side of it wished to make. That is the position and I do not think there is any other procedure that will ensure that the purpose of these sworn inquiries will be fulfilled. They are not, as I said last night, judicial proceedings. They are proceedings to ascertain facts, to ascertain whether administration has been sound and efficient and good. No question of law arises or, at least, arises only very seldom. What is involved is the conduct of individuals, whether individuals have been careful to see that the undertakings for which they have to be responsible have been properly carried on, whether they have been careful to see when they are dealing with public moneys and with contracts that everything is done in due and proper order; when they are responsible for keeping stores, to see that they will properly account for these stores. These are all matters of fact, facts which are, as I have said, recorded and which are studied by the Minister. If the inspector or auditor reports that he has found a deficiency in certain stores and if the person who is asked to account for that deficiency on oath is unable to give a reasonable explanation, is unable to give an explanation which holds water in the eyes of the Minister, ultimately, what virtue is there in his finding justification in the eyes of someone else? It is the Minister, whoever he may be for the time being, who is responsible to his colleagues in the Government in the first instance, under the doctrine of collective responsibility which is enshrined in our Constitution, for ensuring that he does his duty and seeing that the local administration of this country is properly carried out and is above reproach. It is the Minister who, subsequently, is also responsible to the Dáil on the same grounds and, of course, through the Dáil, to the community as a whole and, so far as he is a citizen, to every individual within that community. That is his primary responsibility.
If a man does not do his duty as a local officer, or if an elected body does not function properly as an elected body, the Minister is concerned with that naturally. But he is not concerned to protect those people in their official positions. He is concerned to see that the public interest is placed above every other interest. Therefore, it is not necessary that he should be satisfied that a criminal offence has been committed. All he is bound to see is that the person has so conducted himself in his office as to put it beyond doubt that he is a trustworthy and competent person and fit to continue in that office. No person should hold an office of public trust, whether as a member of a board or as an officer of a board, who is not competent, trustworthy and above suspicion. If there is a person holding a responsible position in whom the fullest trust and confidence cannot be placed by the public, it is the Minister's duty to see that that person will not be in a position to abuse his trust and, if necessary, because there is no other way to do it, to remove that person from his office. That is how the Minister must function because, as I said, he must put the public interest above everything else and he must be careful to ensure that the ratepayers and the taxpayers will have confidence in all their officers. That is the position.
Now, in the exercise of that, the Minister has had to take drastic actions on occasions. It has been alleged here that the persons affected by his actions have no redress. That is what Deputy Coogan was saying, what Deputy Morrissey was saying, and what Deputy Norton was saying. It is quite true that, if a person is removed from office under a public authority, his future will be very precarious. But the Minister must take that also into consideration and, therefore, before the Minister does anything which reflects either on the elected members of a local authority or an officer of a local authority, he has to be satisfied in his own mind as the judge in this matter that he is fully justified in the drastic steps which he proposes to take. That is the first safeguard the person has. Is it alleged that because the Minister, first of all, secures the confidence of the people at an election at which his whole public record and character are before the people for judgment, because the Minister secures an expression of public confidence from a great number of people who know him very well and to whom he is no stranger, and then comes along to this House and secures the confidence at least of a majority of the House and the confidence of his colleagues in the Government, he is going to act unjustly or is less capable of doing justice to any man than any judge on the bench?
We who come to Ministerial office have to go through a very hard trial. Office is not thrust on us by accident. We have to justify ourselves and everything we do to the public. There is no other person in this country who is in precisely that position. Judges do not have to justify themselves beyond the rightness of their decision; nobody else has to do it; but we have. We function in the public eye all the time and, therefore, because his reputation for justice, honesty and probity is as dear to a Minister as to any other citizen, we are careful to ensure that our decisions will stand the test of criticism and will stand the test of discussion and examination such as we have had here. I am saying that as a preliminary to the point I am going to make now.
It has been alleged that the person who has been affected by the decision of the Minister, arrived at in these circumstances, with that background, and with these considerations before him, has no redress. That it not true. Every Deputy must be aware of the fact that it is not true, because at least once a year the conduct of every Minister in the administration of his Department comes before Parliament, and there is nothing that the Minister has done in his administrative capacity during the preceding 12 months that cannot be discussed here on his Estimate.
That is poor consolation for the person removed.
That is the first point. Automatically, every 12 months the conduct of a Minister in the administration of his Department comes before Parliament for review, and if the Minister has been guilty of any unjust conduct, any wrongful conduct, those who believe him to have been guilty of it have a full opportunity to ventilate the matter here in the high court of honour. More than that, if there is any particular matter with regard to the Minister's Department which Deputies consider of sufficient urgency and importance to raise specially, they can put down a motion and the whole matter can be debated and decided here. Cork Street Fever Hospital has been mentioned in the course of this debate, drawn in by a side-wind. Let those who think that the Minister's decision in that regard was unjustified put down a motion and let them prepare to justify to the public some of the matters I referred to in this report.
Will you produce the inspector's report?
This is the report. There is no use in trying to get away with it. Have the courage of your convictions. There is the report.
We will accept the invitation. We will put it down.
If you like, put down a motion and justify the action you are taking and some of the things which were done and which compelled the Minister to dissolve that board.
We will accept your invitation. You will have to justify your decision.
It is a long time since the report was published and, though Deputies have been careful to state that there has been public uneasiness, what proof have we of this alleged public uneasiness? I am not unaware of the fact that an attempt was made to get up a petition many months ago and that in certain premises in this city customers going in about their ordinary business were being plagued to sign the petition.
I am not unaware of the fact that, at least, one newspaper in this country has been conducting a sort of campaign in regard to this matter, but I have seen no signs of uneasiness on the part of the general public notwithstanding the attempts that were made to create uneasiness in the public mind. On the contrary, I think that the ratepayers of Dublin who have to provide many thousands for the upkeep of that institution are better pleased that it is being administered now by a person who is in close contact with the day-to-day running of that establishment, and who will make certain that it will be reorganised on such a basis that, for every penny of public money that is spent on it, a full pennyworth of value will be secured. That is what we are concerned to see. There must be somebody to protect the people who pay for these things, and it is on the Minister that the responsibility for protecting the ratepayers and taxpayers has been imposed. All that we have done in regard to Cork Street has been to put a person in there who will be able to devote, for the time being, such an amount of attention to the supervision of those who are administering that institution that henceforward, when it reverts to its former position, we will be satisfied that the institution is well organised and is well run, and that, as I have said, the ratepayers of Dublin City and County who mainly maintain it will be getting full value for their money.
Did the Minister say what maladministration was proved against the Board of Cork Street Hospital?
I want to reiterate what I have already said, that the purpose of this amendment is to provide certain legal safeguards for parties who may find themselves confronted with a public inquiry. Beyond that I am not going one inch, but right through this debate the Minister has sought to distort the purpose of the inquiry, and to distort the arguments that have been made in favour of the amendment. Now, the Minister has given us a dissertation on constitutional law. I want to impress upon the Minister that, in this matter, I am only concerned to ensure that the Minister's own decision shall be in accordance with the law, and shall be subject to the rule of law. What I am concerned with in this is to prevent anything in the nature of an arbitrary decision being arrived at by the Minister or his subordinates without regard to the evidence upon which they act. The rule of law is a fundamental principle in our Constitution, and it simply means that every citizen shall be equal before the law. It also means that every action taken whether by the Minister, or by the officers of State, shall be in accordance with the law. I am asking no more than that. I am endeavouring to ensure, by providing some legal safeguards in the holding of public inquiries, that the exercise of arbitrary and autocratic power will not be possible.
I do not want to go into the past, but there have been concrete cases where officers were removed by the exercise of arbitrary and autocratic power. It is futile for the Minister to argue that these officials have redress because Deputies, once a year, can criticise the Minister's administration, and raise the question of the particular person concerned. What redress is that to the person? He has gone, and he has no appeal to any court. That is the very point that we are arguing here. It is poor consolation to any individual who has been removed by the arbitrary exercise of Ministerial power to know that some sympathetic Deputy will raise his case once in 12 months, or, perhaps, once in a lifetime.
That is my position on this amendment. I am sorry that the debate has gone to such inordinate lengths, but I see no way out now other than that of a full answer to the Minister. At the risk of being put in the same position as Deputy Byrne was, when he quoted a certain document, I am going to quote from the same document. I may say I got this document in the Library of the Oireachtas. It happens to be the official report of a committee that was set up by the British Government, and mind you the devil, on occasion, can quote Scripture in his own defence. I see no objection to a Deputy quoting in this House the findings of a committee set up by another Parliament if he is satisfied that the recommendations of that particular committee are pertinent to a discussion here, and if he is satisfied that the personnel of that committee were such as to command public confidence, not only in another country but in any country in the world. When Deputy Byrne did so he was reminded of his attendance at royal coronations and funerals and that sort.
This committee was entitled: "Committee on Ministers' Powers". It was set up in October, 1929, and reported to the British Parliament in May, 1931. It considered this very question that is now at issue before this House. I want at the outset to make a few quotations from the report of that committee on this question of the exercise by Ministers of judicial and quasi-judicial functions. The Minister to-day admitted that the functions that he exercises are judicial. The committee in their report say:—
"It may be convenient if, on the threshold of our report, we state our general conclusion on the whole matter. We do not agree with those critics who think that the practice is wholly bad".
That is the position that I am taking up and have taken up all through on this Bill.
"We see in it definite advantages, provided that the statutory powers are exercised and the statutory functions performed in the right way".
I want the Minister to mark this:—
"But risks of abuse are incidental to it, and we believe that safeguards are required, if the country is to continue to enjoy the advantages of the practice without suffering from its inherent dangers".
They go further in this very connection to say that:—
"What people want is security for justice, and the only security for justice is law publicly administered".
Now my entire argument——
Will the Deputy give the date of that report?
It is Command Paper 460, 1932, printed and published by the Stationery Office in England. It is entitled "Committee on Ministers' Powers". The report was presented by the Lord High Chancellor to Parliament in April, 1932.
That is almost 14 years ago.
There has not been any other Committee. I know the Minister has already argued that this committee sat and gave its findings, but that its findings were never translated into law. All that I can say on that issue is this: that the British Government must be suffering from the same disease that our Government here is suffering from, that when they set up commissions to investigate very high sounding policy, and when these commissions come back with a report which the Government does not like, or did not anticipate, they pigeon-hole it. The committee in its report quotes from a book entitled The New Despotism by the late Lord Chief Justice of England. The quotation is pertinent to this question of decisions being arrived at within the privacy and secrecy of Government Departments. The Lord Chief Justice says:—
"How is it to be expected that a party against whom a decision has been given in a hole-and-corner fashion, and without any grounds being specified, should believe that he has had justice? Even the party in whose favour a dispute has been decided must, in such circumstances, be tempted to look upon the result as a mere piece of luck. Save in one or two instances, none of the Departments publishes any reports of its proceedings, or the reasons for its decisions, and as the proceedings themselves, if any, are invariably held in secret, even interested parties have no means of acquiring any knowledge of what has taken place, or what course the Department is likely to take in future cases of the same kind that may come before it. A Departmental tribunal is, however, in no way bound, as a court of law is, to act in conformity with previous decisions, and this fact is commonly regarded as one of the reasons for the policy of secrecy. However that may be, the policy is fatal to the placing of any reliance on the impartiality and good faith of the tribunal. It is a queer sort of justice that will not bear the light of publicity."
Now, that opinion is from no less an authority than the late Lord Chief Justice of England, and it was on this very issue that we are discussing here. The Minister has said that the law in this matter is settled. So far as I know, the law in this matter is entirely unsettled. If the Minister has in mind the case of Rex v. Local Government Board Ex parte Arlidge, away back in 1914, there was a remarkable conflict of judicial opinion there.
What is the use of talking about a conflict of legal opinions? It was well settled law that the House of Lords had decided that the Local Government Board were not bound to publish a report. That was their decision.
Yes, but amongst the obiter dicta in that case the judge gave a certain indication that it would perhaps add to the public confidence in these inquiries if the reports of the inspectors were not always treated as confidential documents.
A decision was given in the House of Lords, and it is the decision of the House of Lords which is the law there.
I think that it was a question of a small majority against a minority in that case.
Oh, no.
Give us the Report of the Cork Street Hospital Inquiry, and we will all be satisfied.
I do not want to be dragged into the Cork Street Hospital Inquiry. Let us consider this question without going into the matter of the Cork Street Hospital Inquiry. The Minister gave us cases of constitutional law, and he instanced the institution of powers which are separated into three well-known compartments: the executive function, the judicial function and the administrative function; but he stopped short there, and gave us no indication of matters which have arisen through our written Constitution, nor any indication that there is anything to ensure that one of these powers will not encroach on the other. Naturally, the Legislature is jealous of its jurisdiction; the judicature, naturally, is also jealous of its jurisdiction; and the Executive is not only jealous of its power but, judging by present indications, it wants to take everything into its maw. Like Gargantua, the more you feed into its maw, the more its appetite grows.
I have already mentioned what was actually decided by the House of Lords and what the decision was.
I take it that the Minister is referring to the Arlidge case?
Yes. Ultimately the case went to the House of Lords on the specific issue as to whether the findings contained in an inspector's report were vitiated by the failure of the Local Government Board to disclose such a report, and it was the decision of the House of Lords that the Local Government Board were not bound to publish the report.
In the case of Rex v. Local Government Board Ex parté Arlidge there was much discussion, which led to a remarkable conflict of legal opinion.
That is not so.
I am quoting from the proceedings in the King's Bench Division, where Judge Bankes expressed the opinion that it would perhaps add to the public confidence in these inquiries if the reports of the inspectors were not always treated as confidential documents.
Yes, "not always".
In the Court of Appeal Vaughan Williams and Buckley L.J.J. held that "the non-production of these reports was contrary to the principles of natural justice on which English law is based"; and Hamilton L.J., while saying that, if it was the function of the Court of Appeal to advise the Local Government Board as to its procedure, or to criticise the procedure actually adopted, "he should for his part suggest that the board should let the parties see the inspector's report," declared "that he could not but feel that all that could be urged against the Local Government Board might be still more forcibly urged against the Court of Criminal Appeal."
Surely, the Deputy, as a lawyer, knows that this thing has been decided by the courts?
In the House of Lords the Lord Chancellor said that "it might or might not have been useful to disclose the report"; Lord Shaw of Dunfermline inclined to hold "that the disadvantage in very many cases would exceed the advantage of such disclosures"; and Lord Parmoor held that "non-disclosure was not inconsistent with substantial justice". Lord Moulton was "unable to see any reason why the reports should be made public", and expressed the opinion that their publication would cripple the usefulness of the inquiries. I have quoted a number of decisions there.
On a point of order, I am putting this to the Deputy——
Is this a point of order?
Yes, it is. I am putting it to the Deputy that a decision has been already given.
That is not a point of order.
Deputy Coogan should be allowed to continue.
I suggest, Sir, that I am entitled to put forward the point of view of these judges in connection with such matters, irrespective of what the ultimate decision might be.
Yes, but I want to put certain points to the Deputy.
If I were speaking, this debate would be over long ago.
Deputy Coogan is speaking at the moment, and he should be allowed to continue.
Now, on this question of legal decisions and quasi-legal decisions, the Minister, last evening, gave me clearly to understand that the procedure was no different in our courts when a judge and jury tries an action. I do not want to go back over that ground, but I should like to know who is to be the judge. According to the Minister himself, he is to be the judge. Then, who are to be the jury? The great weakness in that argument is that when the jury retires to consider its answers to certain questions put to it by the judge, they have had the advantage of listening to the witnesses. They have seen the witnesses and they have been able to form an impression of their character and credibility. They have heard the witnesses on direct examination. They have heard them cross-examined and they could form a very good opinion of their credibility and character. No such thing can happen in the case of the Local Government Department. The only person who has seen the witnesses is the inspector who has held the inquiry. He might advise the Minister's advisers as to the credibility of the witnesses, but he is the only person who has seen those witnesses in action and who can give the Minister an authoritative opinion as to their worthiness as witnesses.
That is an entirely different procedure from that which obtains when a judge and jury sit in connection with a matter. Furthermore, as Deputy Morrissey has pointed out, the jury have been sitting for a period of days. They have had the advantage of hearing counsel for the prosecution and the defence. They have also had the advantage of hearing the judge sum up. Furthermore, the judge is the absolute arbiter so far as the law is concerned and the jury must accept his rulings on matters of law. They can find only on the facts. There is no analogy whatever between the two forms of procedure. The Minister went on to tell us that, in certain cases, proceedings are held on documentary evidence. That is so but he forgot to mention that the great majority of cases on appeal are decided on oral evidence. We have the District Court, the Circuit Court, the High Court and the Supreme Court. Having regard to the fallibility of human nature, human judgment, understanding and knowledge and the fallibility of judges, we have seen fit to provide a system of appeals from the lowest court in the land to the highest court. The majority of those appeals will be by way of oral hearing. In other words, the judge on appeal will have the advantage of a full oral hearing on retrial.
Not in the Supreme Court.
No. They go to the Supreme Court only on matters of law. But in the case of the ordinary appeal to the High Court on circuit, you have a full oral hearing — an entirely different proposition from that indicated by the Minister. In any event, there is no appeal from the Minister's decision. The only appeal he has admitted to to-day is this peculiar suggestion that an aggrieved party might have his case raised in the House on the annual Estimates — a poor form of redress.
On this matter of decisions, there are four requisites to any normal hearing — (1) the presentation of the case by the parties to the dispute; (2) if the dispute is a question of fact, the ascertainment of the facts by means of evidence adduced by the parties to the dispute, with the assistance of counsel; (3) if the dispute is a question of law, the submission of legal argument by the parties and (4) the decision, which disposes of the whole matter by the finding on the facts. These are the normal ingredients in a court case. Take the ingredients in the Minister's case. Requisites (1) and (2) are present but you rarely get the third and you do not get the fourth, whereas in a court of law you have a full, reasoned judgment in which the judge gives his grounds for coming to the conclusion he has reached on the case before him. Having regard to that fact, this committee held that the proceedings of the Ministerial tribunal should be such as would leave no doubt in anybody's mind that justice had been done. Furthermore, they strongly recommended that the rules of natural justice, so far as they could be applied, should be applied to such proceedings. The first and most fundamental principle of natural justice they held to be that a man may not be a judge in his own cause. They went on from that to argue that, in very rare circumstances, can a Minister be a disinterested party as between even a local authority and the Minister or between an official and the Minister and they urged that, for that reason, it was necessary that the Minister's powers should be carefully curbed and the proceedings safeguarded. They made this statement:—
"We are of opinion that, in considering the assignment of judicial functions to Ministers, Parliament should keep clearly in view the maxim that no man is to be a judge in a cause in which he is interested. We think that, in any case in which a Minister's Department would, naturally, approach the issue to be determined with a desire that the decision should go one way rather than another, the Minister should be regarded as having an interest in the cause. Parliament would do well in such a case to provide that the Minister should not be the judge but that the case should be decided by an independent tribunal."
That is the case I have been arguing throughout this debate. You have that position in the Department of Industry and Commerce where the tribunals set up are usually conducted by lawyers, with the assistance of lay assessors. You have the same position in the police. When charges are preferred against an individual member of the police, a board of officers is set up if the charges are denied. That board inquires into the charges and arrives at its findings. They say whether the party charged is guilty or not guilty. If the board find that he is guilty, then the Commissioner may impose disciplinary punishment. If the board find that the charges are not proven and that the person charged is not guilty, that is an end of the matter. That is an entirely different proceeding from that of a tribunal in the Local Government Department. In the Army, a soldier has a right to court-martial and the Minister does not interfere. I cannot see why the Minister should worry himself in these matters, why he should not rid himself of these judicial functions by handing them over to an independent tribunal. In that way, he would relieve himself of considerable responsibility. He would be doing himself justice and he would be bringing about a position which would be fair to himself and his Department and to the aggrieved party. "The second principle of natural justice," this committee says, "has two aspects. No party should be condemned unheard—"
Surely the Deputy realises that his argument has no force when the British themselves did not adopt that procedure.
I want to put forward these as cogent reasons for my argument. As a matter of natural justice, it can be argued, the committee says, that a party is entitled to know the reason for a decision at which a judicial or quasi-judicial tribunal has arrived. The parties should be informed of the decision and the report of the tribunal should be published to them. I move to report progress.