Dáil Éireann debate -
Tuesday, 29 Apr 1947

Vol. 105 No. 12

Committee on Finance. - Sinn Féin Funds Bill, 1947—Committee (Resumed).

Debate resumed on Section 10.

Mr. McGilligan

Before the interval, I was speaking on the difference between the precedents, or alleged precedents, quoted and what is before us in this Bill. I was making the case that it is quite proper for Dáil Éireann, on occasion, to say, in respect of legislation it has passed: "The courts have shown by their decision that they do not appreciate the mind we had on this particular matter. We shall let the people who obtained a decision reap the reward of their enterprise but we shall, by Act, try to establish for the courts a new system and introduce phrases which they will interpret so as to give effect to our intention." That is a normal proceeding. Nobody can object to that. In the phrase he quoted in relation to the Local Authorities Mutual Assurance Bill, Deputy O'Connor showed that that was quite clearly what was intended to be done. The court came to a decision not in accordance with a view of the Dáil and, for future cases, the Dáil re-established its view. That went before the courts and the courts took a view in accord with what Dáil Éireann intended. Thereafter, the matter proceeded accordingly. It is open to the Dáil from time to time to do that and nobody can object to it. Here, we are writing in a provision to prevent people from getting a decision. We are dragging the matter out of the courts and into what the Taoiseach calls "the supreme court of this Dáil".

I want to put in contrast two things. We are living under the Constitution of the year 1937. In the earlier part of that Constitution, it is stated that there are different powers of Government and they are divided into the ordinary three branches—legislative, executive and judicial. Those three branches are followed in those divisions through the Constitution. We come to the Article which deals with the courts in Article 34. There are previous references to the courts, but this is the article which establishes the court system. In the Constitution under which we invite the people to live, we say that there are to be three types of functions to be attended to— judicial, executive and legislative. In Article 34, we tell the people what we propose for them in the way of courts. We say in that Article:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution."

The remainder of the paragraph deals with the question as to whether justice is to be administered in public or not. That is not relevant here. Justice is to be administered in courts established by law by judges appointed in the manner provided by the Constitution. At a later point, we divide the courts into courts of first instance and a court of final appeal. In paragraph (3) of Article 34 we say:

"The courts of first instance shall include a High Court, invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal."

There are further provisions but that gives in a skeleton way the situation of the courts in connection with justice. The people were told, that, under that Constitution, we were going to see that justice would be administered and that there would be no question of the Executive interfering with the courts. We were going to see that the courts would be independent of the Executive because they would be presided over by judges appointed in the manner provided by the Constitution. They were to be the people to administer justice. Later, in reference to the judges, by a device that has come down through history, we established that situation of the independence of the judiciary. We tell them that we expect them to be independent. We tell them that they cannot be removed save under very peculiar circumstances and for reasons such as misbehaviour or incapacity. We give them tenure for a particular period and we guarantee that their emoluments will not be reduced during their period in office. We ask the judges to take an oath when they enter upon their work. The oath prescribed for judges appointed under the Constitution, which covers the higher courts, is in the following terms:

"In the presence of Almighty God, I —— do solemnly and sincerely promise and declare that I will duly and faithfully to the best of my knowledge and power execute the office of —— without fear or favour, affection or ill-will towards any man and that I will uphold the Constitution and the laws. May God direct and sustain me."

In that very solemn way, we establish courts with independent judges whom we bind by an oath to behave in that way. Then, we say to the people: "Any time you want justice, go to those courts with the knowledge that they are presided over by judges whom we cannot sway by changing their salaries or by removing them from office. We have appointed them because we believe they will carry out their trust and we have put it beyond our power to penalise them by dismissal or reduction of emoluments so as to give them a free hand to do their work."

We say of them that they are to be independent in the exercise of their judicial functions, in Article 35; so we tell them that they are to be independent and we provide them with the means of securing that independence. Then we turn to the people and say: "If you have a case, go plead it in our courts, for you will get independent judges." We tell them in the forefront of the Constitution that there are three types of function in any case—legislative, executive and judicial. Go to Article 34 and what follows it and you will find what is meant by the courts. In those circumstances, people go to the courts asking to have decided a simple question, a question that is certainly simple for the courts to decide —they have decided many things like it often before—whether the people who claim these funds really merit them and are entitled to them. When that case has stayed there for some time, the Taoiseach comes in here with this piece of legislation and its effect is that, on its passing, all further proceedings shall be stayed. Then, to prevent the High Court having any independent view of this, we find: "The High Court shall, if an application in that behalf is made ex parte by or on behalf of the Attorney-General, make an order dismissing the pending action without costs.” Then there is provision for the payment of the costs. After that, we find that: “No action or other proceeding shall, save as provided by this section, or Section 11 of this Act, be brought or instituted in respect of the court funds or the moneys on deposit in the bank.”

Then, having taken that money out of the court, it is to be distributed in accordance with the other sections of the Bill. What is to be substituted? A committee of people will be nominated by the Government. That committee will be presided over by the Chief Justice or someone nominated by him and from that committee there may be removed from time to time such people as a group of three outside the court nominated by the Chief Justice may determine, on the application of the Attorney-General—and that is no question of competence, although the Taoiseach tried to make out the other night that it was. It says: "If it is thought desirable to move him." This group of non-judicial people, as shown in the Bill in any event, is then to distribute the funds. They are to decide their own procedure; they can decide what evidence they will have before them, what records will be kept of the evidence; and the money will be paid out.

Now, may I make the contrast? All the things that make for independence in the judiciary are absent from the new body. It is not to be thought that the Chief Justice becoming chairman of this remains Chief Justice, or at least is Chief Justice in relation to the position. He is not; he has no judicial oath to bind him, he is nothing in respect to these disbursements. The committee are to be nominees, not judicial people. All the rules of evidence may go by the board. Records that ought to be kept, so that people could thereafter say that somebody got those moneys who was not entitled to them—all that is to go. Supposing one were thinking of a real racket. Supposing a gang of people with the worst minds in the world got together and said they wanted to think of a group who would distribute some funds to friends of that group, what would they, if they wanted full freedom of action, think of doing?

The Taoiseach

On a point of order, is this relevant to Section 10?

Mr. McGilligan

I am making a contrast between them and what is proposed in the Bill.

The Taoiseach

Is it relevant to Section 10?

Mr. D. Morrissey

The Taoiseach did not deal with Section 10 during his own speech.

The Taoiseach

I did.

Mr. Dillon

It is strictly relevant to Section 10, and everyone knows it.

The Taoiseach

The Deputy can have his opinion. I would like to have a ruling, A Leas-Chinn Comhairle.

Mr. McGilligan

The Chair will pronounce in my favour, I understand?

An Leas-Cheann Comhairle

Deputy McGilligan is quite in order. It is relevant to the question.

Mr. McGilligan

If a group of racketeers wanted to distribute money to their friends, what better device could they think of than the one here?

The Taoiseach

Under Section 10?

Mr. McGilligan

This Section 10 stops the court proceedings. Think of the audacity of people who, in any country, step into the court and stop the court proceedings. Having done so, they have to put in something instead of the court and they decide immediately: "We will have our own pals in this and in case the courts might look in afterwards and there should be any arguments, we will have none of that nonsense of keeping records: let the people apply here orally and we will have a rough and ready examination and we will give out the money". Then they might say: "That would be too much of a scandal. We ought to cloak it in some way". Then they will have someone in another position and get him in, in order to put a gloss, something in the way of a fair-seeming appearance, over the whole matter. I suggest that that is what is being done here and that that impress is on the whole set up of what it is proposed to substitute for the court proceedings which are to be stayed under Section 10.

I come back again to why the proceedings are being stayed. We have gone to some trouble to establish courts in this country, and an attempt has been made to build up an institution of which we could be proud. We have gone ahead without constituting new and wonderful devices. We have put in what would appeal to the common man down through the ages as the fortification of the independence of the judiciary. The Taoiseach cannot let it be thought that he is afraid of the courts, yet we are going to stay the proceedings, after the passing of this Bill, on the application of the Attorney-General. I have gone through the debates, in so far as they came to my hands, and that brings me up to last Friday, to see what arguments had been used. I want to deal with them very briefly. The first is delay. Are we to take it that the Taoiseach's view is that, in any case hereafter in which there is delay in bringing proceedings to a head, he will intervene with legislation? His language is general enough to suggest that that is the general policy. He could make no argument on that, as there need not be delay if the parties to the action are vigilant. There certainly need not be unreasonable delay. The courts are open to an application by a group of defendants to hear a case, after a certain time has elapsed, when there is power in any defendant to give notice of trial and bring an unwilling plain-tiff into court. Therefore, no great case can be made on unreasonable delay, as the courts have their own devices against that.

In this case, the only thing that could be said is that the reason why that procedure was not adopted was that there were no people who, even after four or five years, could get the courts to declare that the action was one fit to be set down there and then for trial, on the application being made. Hence, that procedure was avoided and another was adopted. One party to the action applied to have the matter dismissed out of court for want of prosecution. That was tried and the courts have not granted the dismiss, so there cannot be such great unreason about the delay as is represented here.

Then, there is the Taoiseach's point that these courts might give an unreal decision, decisions that were narrow legalistic ones, or might not be in possession of the facts. He talks of bringing the action to the "sovereign court of justice, Dáil Éireann". That is certainly a surprise to anyone who reads the Constitution. No one yet ever proffered the Dáil as a sovereign court of justice that was to evaluate any claims as between parties to litigation. The Dáil has often been paraded as the proper party and the only party in this State to pass legislation, but to pass legislation in the main with an eye to the future. But this is brought to the sovereign court of justice, the court which can decide upon the essential justice of what is proposed. Every act of ours here, everything we do here, is to be judged by this fundamental justice—that is, justice from the point of view of the well-being of the people as a whole and the common good. That, I take it, is supposed to have reference to the preamble to the Constitution, that part of it which speaks of seeking to promote the common good with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured.

Remember that one of the matters caught up in that part of the preamble is that there shall be due observance of justice, and that we assure the dignity and freedom of the individual. However little he may have thought his words would be regarded, the Taoiseach takes the view that seeing that certain people are insignificant folk that was an argument for cutting across the rights that they propose to test in a court action. Deputy Dillon made the proper observation on that, that constitutional guarantees are probably not required by people who are of great significance because they may get their way anyhow. Constitutions are always supposed to be specially regarded by people who are insignificant and of little worth. Their rights are supposed to be respected and they are given guarantees of a constitutional type.

The Taoiseach thinks this is a proper matter to bring into the sovereign court, and that we will be judged by our attitude towards it to the common good. We have to stand or fall by this Bill on the basis that it is for the common good. He said that we were doing substantial justice in dealing with these moneys in this way:

"There is no fear that the people will be scandalised or that they will feel that an attack is being made on the independence of the courts or anything of that sort."

Later he says:

"I have no hesitation in saying that it would be substantial injustice —no matter how formally it might appear to be true—if these people were to get the money."

Later again he says that:

"The representatives of the Irish people here, in whose cause and for whose fundamental purpose these moneys were subscribed, comprise the most equitable body to decide how the funds should be used."

So that we are not merely the sovereign court of justice, but, as representing the Irish people, we have the right to decide how these moneys should be used. The only argument made derogatory of the courts is that the courts are not capable of deciding this case on proper lines. Therefore, we are going to cut across the courts. I say that you may succeed in your action over this Bill. If you carry your measure you will get these moneys and you will get them without any documentation in a way that no one can challenge in court. You will have a number of people benefiting by a prejudiced and partial distribution of these funds.

That is what the people who pride themselves on having brought in the Constitution are proposing to do. The Taoiseach and his followers are seeking-to wreck it frequently and at important points. Through this activity, the Taoiseach is cutting completely across the ordinary division of powers that there is in the Constitution— judicial, executive and legislative. He says that this legislative body is the supreme court of justice. If that is going to happen now, Deputy Dillon made the point: What is to prevent it happening again? The people who make that argument in this case can equally make it in another case. If a majority here like to deem this the supreme court of justice, then they can take anything out of the hands of the courts. The only background to that is the constitutional right that people may ask the courts to decide whether what we are doing is constitutional or not. I wonder will the Taoiseach be very happy. Supposing a case is brought as a test case to the courts as to whether or not this legislative body has any right to act as a court of justice, and he gets a decision that it has the right, where are your courts of justice after that? That certainly opens the door for any kind of legislative activity in connection with any action that is before the courts.

I do not know whether the Taoiseach wants to put it so far as that, but that will be inherent in the judgement he gets in his favour in this matter, that once you go to that point you are back again at this: that a Party, with a majority in this House, can deride the courts, and all the grand things that are written about the appointment of judges and giving them independence will appear as so much nonsense, because on any and every occasion on which somebody brings in a piece of legislation he can lift a matter out of the hands of the courts and decide it here according to the view of the supreme court of justice. I suggest that is not a conclusion that anyone should like of the constitutional position. It is not a position that anybody should lightly seek, but that is the result that you are going to get if this thing is pursued. As against that, there is the court which is controlling these proceedings, a court that nobody here has impugned except the Taoiseach. We are all in favour of leaving this to the courts to decide. How anybody can say that anyone in opposition to this measure has sought to deny the powers of the courts or sought to criticise anyone belonging to the courts, I cannot understand.

There is one final point. During the week-end the Minister for Local Government gave his version of how these funds came into being. I want to ask: Is this anything near the truth? His view is that these moneys are public moneys. I query that right away. The Minister explains that they are moneys that were provided in 1921 out of the funds of Dáil Éireann to maintain and strengthen the Sinn Féin organisation of the day which, the Minister says, was then as closely associated with the Ministry of Home Affairs as, for example, the Dairy Disposals Board is with the Department of Agriculture to-day.

An Leas-Cheann Comhairle

Can the origin of the funds be related to Section 10?

Mr. McGilligan

I think so. These are the funds we are dealing with. The Minister makes the argument that these are public moneys and goes on to tell us why he believes there should be no court action at all:

"Like moneys voted by the Dáil to-day to meet the cost of the public Departments, the Dáil Éireann moneys, if they were not spent on the purposes for which they were voted, were to revert to the Treasury of the then Government, the Republican Government of Ireland."

If that is the case, or anything like the case, then, of course, it is not a question of asking for the action to be dismissed. The Government should claim these moneys as belonging to the Treasury. The Minister further goes on to say how the moneys arrived in court that they were now going to take out and put into a fund. He said it was agreed that it would not be right or just to use the moneys in question— that is those which he says are Dáil Éireann funds—for any sectional purpose and he says "the honorary treasurers of the Sinn Féin organisation duly carried out their instruction". That instruction is supposed to have been given by the Sinn Féin organisation.

Surely the Taoiseach will agree that that is so much nonsense, or does he accept what his Minister has propounded to the country as the true version of how these moneys came into court? He says they came there on the instruction of the Sinn Féin organisation, that the honorary treasurers acted on these instructions.

I suggest that these are not public moneys. I suggest they are not any thing like moneys voted by the Dáil. I suggest they do not revert either to the Republican Government of Ireland, whatever that was, or to any other Government of Ireland. I suggest the moneys were lodged by the people who did lodge them under entirely different circumstances from what the Minister describes, and are there awaiting the judgment of the court, and that the court should be allowed to pronounce that judgment. I say there is no argument arising either on the heading of delay or on the heading of what the court might do with these moneys. The court should be allowed to adjudicate upon the funds in the ordinary way. I think it will be a day that this Dáil will rue if they break across the whole purpose and spirit of the Constitution and, now that moneys are there awaiting decision in the court, step in and take them out of the hands of the people who are to administer justice and bring them back to this, which is a legislative body and never was intended to be a judicial body, never was intended to interpret justice as between parties, and has no right or title to interfere in this action.

Mr. M.E. Dockrell

A great deal has been said on this section in this House. I listened this afternoon with a great deal of interest to what the Taoiseach had to say, hoping for an explanation for the insertion of this section in the Bill. I might say this section is the Bill. The Taoiseach did not give any clear explanation as to why this section was necessary or why this Bill was introduced. We are a legislative Assembly. It is not the function of this Assembly to decide issues. It is our function to make laws. That is where the Taoiseach has got mixed up. He said several times: "We have the right to make laws." Of course we have the right to make laws. Nobody else has the right to make laws in this country. But we have not the right to decide issues and, in this matter, we are not making a law, we are deciding an issue.

The Taoiseach

What are laws?

Mr. M.E. Dockrell

I have been wondering what is the exact definition of a law, and I am sure there are lawyers in this House who can tell us, but I would say that one of the characteristics of a law is that it has general application or plural application. This Bill has not either general application or plural application. It cannot have it. It deals with one particular instance, the exact circumstances of which probably will never be repeated. This Bill arises out of the peculiar circumstances surrounding this particular sum of money that will never exist again in this Dáil. Therefore, it is an issue and, as a legislative Assembly, we are doing a bad thing when we confuse the deciding of an issue and the making of a law. For the sake of £20,000 we are arrogating to ourselves a position which no legislative Assembly has succeeded in persuading legal minds that it has any sanction to arrogate to itself. I regret that this matter should have come before us. I had hoped the Taoiseach would give us some valid explanation, but there was nothing in his statement this afternoon that could persuade an unbiased and balanced mind that we were not embarking on a very dangerous and bad line of conduct.

Mr. Dillon

Two very important points emerge from the speech made by the Minister for Local Government, Mr. MacEntee, at the Fianna Fáil cumann. Is not it a novel thing for a Minister of State, who has not intervened in a debate which has gone on here for three days, to trot off to a céilidhe in a hall here in town——

An Leas-Cheann Comhairle

We are not discussing the Minister for Local Government, Deputy. We are discussing Section 10 of this Bill.

Mr. Dillon

We are discussing his speech now.

An Leas-Cheann Comhairle

On Section 10?

Mr. Dillon

Yes. He dwelt on Section 10.

An Leas-Cheann Comhairle

What is the relevancy?

Mr. Dillon

He dwelt on Section 10. As Deputy McGilligan has just pointed out, he dwelt at length on the source from which the funds came and the goal to which they ought to be oriented. He must have been very welcome at the céilidhe, discoursing on the history of these funds and the constitutional procedure which should accompany the disposal of the funds.

But we must remember that he was Minister for Finance for ten years. Despite all his vanity he was custodian of the financial affairs of this country for ten years. He has gone on record last Friday night as saying that, in his judgment, the nature of these funds was such that were they not exhausted by the trustees of Sinn Féin for the purpose for which they had been granted by the First Dáil they should accrue back. I cannot persuade myself, silly as I know him to be, that he went out with the deliberate intention of telling these people at the céilidhe a falsehood. I will give him credit for believing what he said to be the truth. But if he believed what he said to be true how is it that he, as custodian of the Exchequer for ten or 12 years, knowing all the time that these funds were outstanding and that under the law as he knew it they belonged to the Treasury, knowing that they were in the hands of a trustee who was at all times ready and willing to comply with the law, knowing that all he had to do was to tell the trustee or trustees at any time during his tenure of office as Minister for Finance that there was upon them a legal obligation to turn over these moneys to the Treasury and they would be turned over at once, why did he not do it? We are in this dilemma. Either he went to the céilidhe on Friday night with the deliberate intention of telling a lie—that is, of course, unthinkable——

An Leas-Cheann Comhairle

Does the Deputy say it is "unthinkable"?

Mr. Dillon

Of course. We are forced back to the conclusion that for ten years, well knowing that a substantial sum of money for the safe keeping of which he swore an oath as a member of the Government—if he did not he certainly staked his personal honour—that he would look to it and protect it for the benefit of the Exchequer of which he was the custodian, remained unprotected: that he went into office knowing it to be there and remained in office ten years all the time knowing it to be there. He never approached or asked the trustees or he never acquainted the Government that the trustees held these funds belonging to the Treasury of this State.

Surely the Taoiseach has a duty, as head of the Government, to send for that man and say to him: "I held you out for a number of years as being the responsible Minister for Finance. You have now publicly declared that, well knowing that moneys belonging to the Treasury were outstanding in the hands of individual trustees, you never bothered to bring them into account and but for Mrs. Buckley it looks as if you never would have." What will the reply of the minister for Local Government be? It cannot be that he told a lie, because that is unthinkable. Is it that he is incompetent, or lazy, or what? Surely somebody speaking on behalf of the Government ought to tell us. If we continue to discuss this Bill, especially in respect of Section 4 and Section 10, half the Government Deputies will be in the soup. The Taoiseach is in the soup. The Chief Justice is in the soup. The Minister for Local Government is now in the soup. Deputy Walsh, from Drogheda, is in the soup; Deputy O'Connor is in the soup.

Mr. O'Connor

What does "in the soup" mean?

Mr. Dillon

In that you have got into a mess.

An Leas-Cheann Comhairle

These people are not in Section 10.

Mr. Dillon

Deputy O'Connor came in here this afternoon with the Erasmus Smith case in his hand and by the time he had finished with the Erasmus Smith case he was dropping it like a hot potato all over the place.

Mr. O'Connor

I will give the potato to the watch-dog.

An Leas-Cheann Comhairle

Will the Deputy come to Section 10 now? There is nothing in Section 10 about the funds at all.

Mr. Dillon

Do I understand the Leas-Cheann Comhairle to say that there is nothing in Section 10 about the funds?

An Leas-Cheann Comhairle

About the origin of the funds. The existence of the funds must be accepted for this section anyway—not why they came into existence.

General Mulcahy

On a point of order, I want to safeguard myself in this matter. Surely the case that is made by the Taoiseach is that this is a House which knows all the facts of the case and is, therefore, able to decide. Surely all the facts include how the funds came into existence, who were their owners and custodians.

An Leas-Cheann Comhairle

The Deputy must accept that the funds are in existence.

Mr. Dillon

We accept that the funds are in existence.

Mr. D. Morrissey

If they were not there we would not have the Bill at all.

Mr. Dillon

To give the devil his due, I do not think it is so much the funds that have given rise to this as the witness box.

An Leas-Cheann Comhairle

To whom does the Deputy refer as "the devil"?

Mr. Dillon

It is a figurative expression which has no personal application —unlike this Bill which has a general application. It is not directed at any particular individual. The House should keep constantly before its mind that it is not the funds which produced this Bill—it is the witness box and Mrs. Buckley. If there were no witnesses and no Mrs. Buckley there would be no Bill. I am only hoping that if we can persuade a few more of the valiant bodyguard to join their colleagues in the soup we may persuade the leader that this game is not worth the candle. It is not too late to restore some measure of mutual confidence in this House. I suggest to the Taoiseach that it would be much more desirable to restore it than to inflict upon us the ordeal of calling in the Minister for Local Government to explain to this House how it is that during his ten years of office as Minister for Finance he did not bring into account these moneys which he now says it was his duty to collect and hold for the benefit of the Irish Exchequer.

Mr. B. Maguire

I am interested in this debate from a few points of view. One is that I think the matter of the ownership of the fund should be permitted to be decided in the courts. Firstly, for the reason that there are many claims to that fund. People all over the country have made claims for compensation for services given. These claims over the years have been refused for one reason or another—I do not know for what. But, obviously, however justifiably their claims could be maintained, the claimants have not had an opportunity of bringing their cases into court because there was no declared owner of these funds. Accordingly, a serious injustice has been done to genuine claimants to whom moneys are due for services to Sinn Féin at the time and who have a lien on these funds. It is an injustice to deprive them of having a declared ownership of these funds so that they may have the right to make their case and claim what is due to them. I consider it is quite unfair that these people should be deprived of their right to what is their due and, in the ordinary way, having it determined who are the owners of the funds. The justice of their claim should be determined in the ordinary way by the courts. That is a form of confiscation which is unjust and accordingly I oppose it.

In the second place, I am opposed to the proposal because I feel that it is a matter that the courts should decide. Whether the funds belong to those who are claiming them is a matter as to which I am not offering an opinion. But interfering with the ordinary processes of the court is a matter which I oppose on the ground of liberty. I have no doubt that the Taoiseach and his Ministers fully considered the implications of this and that they had probably at the back of their minds a justification for the course that they have adopted. But these facts, for some reason, have not been disclosed to the public. In the absence of evidence of justification —I am speaking genuinely as far as public opinion is concerned—this proposal to take the case out of the courts is certainly causing an immense amount of disquiet amongst a very wide section of the community.

Whatever the causes which prompted the Taoiseach and his advisers to decide on the action they have taken, it is not sufficient that they should have had a realisation of the necessity for that course merely to justify them in the steps they took. In order to ensure the confidence of the public in the utility of the courts, the justice of the courts, and the right of individuals to use the courts, they should have been in a position to disclose the information which guided them in coming to their decision.

The courts are a necessary part of our institutions and interference with them is a serious matter. There is a duty which every individual who claims the right of citizenship is bound to observe. To the extent that we observe that we may expect from the community an equivalent return. If in the head of the Government and amongst Ministers there is absence of that good citizenship, in so far as they will withhold information which prevents an injustice being brought to the notice of the courts and tried out there, to that extent public opinion is stifled and confidence in our justice is destroyed. No matter what explanation we may make of good intentions in regard to the distribution of the money in the interests of the needy and the poor and those who suffered at a certain time, it is of no importance. If there is a lien on these funds by claimants who gave services and who have a moral claim on them, those persons' claims should come first and no interference by the Government should prevent the claims being heard. Taking this case out of the court is wrong and that wrong is only equalled by the lack of citizenship which the Taoiseach has shown in preventing the courts from hearing grievances, a thing which is necessary for the establishment of justice and fair play.

General Mulcahy

The supreme issue in this Bill and in this section is the dignity and the independence of the courts and their prestige and effectiveness in serving the people. It is because of the constitutional point involved in the matter and the steps which may have to be taken, if this Bill passes through both Houses of the Oireachtas, to invoke the Constitution against the terms of this measure that I want to comment upon the attitude taken by the Taoiseach this evening when he quotes a large number of Acts passed through the Oireachtas that are alleged to be precedents for what is being done in this Bill. The Taoiseach was asked to name the actual cases affected by these Acts which were on a par with the case being dealt with in this Bill and he was not able to do it.

I protest against the Taoiseach's action in throwing a smoke-screen over the whole situation and trying by innuendo to build up a case that what has been done here is an ordinary thing, and that it has been done before and trying to create the idea that there is no constitutional issue involved or likely to have to be considered in connection with this. I ask Deputies to refer to column 1441 of the Official Report of 24th April where the Taoiseach is reported as saying:—

"It is because I know the facts of this case are so well known that I have not the slightest fear that anybody in the country will think we are going to establish a precedent by our action here. This is a unique thing in so far as this State is concerned. It is going to be unique and remain unique...."

On the 24th April, five days ago, the Taoiseach was asking us in relation to this measure to accept it as absolutely unique and without precedent; that it was going to remain unique in that nothing like it was ever going to happen again. I want to emphasise that and to sweep away the suggestion that the Taoiseach tried to make to-day that this is a normal matter. This is not a normal matter. The Taoiseach indicated that this is the court in which it is proper to have this thing tried because we have all the facts here. I hesitate to add to any of the facts that we ought to know here because, as I said last Friday, I so resent the whole proposal here that I do not want to add to the facts; but, to show that there is some kind of a case being removed from the court, I would like to quote a short sentence from a speech made on the 14th March, 1929, by the Taoiseach. In column 1398 he made a speech which began:—

"We are asked to state clearly what our attitude towards this House is."

And then he explains why he came into the House, and in column 1400 he says:—

"Those who continued on in that organisation which we have left can claim exactly the same continuity that we claimed up to 1925."

If the Taoiseach, in March, 1929, could state in debate that the people he left behind him in the Sinn Féin organisation could claim exactly the same continuity that he claimed up to 1925, then there is some kind of a shred of a case out of his own mouth that shows that the people who are claiming these funds in the courts have a case to make. The fact, as has already been made patent here, that the defendants have gone to the extent of spending about £5,000 preparing material for defence, shows also there is a case, and it is because there is a case that has been admitted to that extent by the Taoiseach and that has been faced to the extent of an expenditure of £4,000 or £5,000 by the defendants, that we claim that it is an outrage to step in by an Act of the Oireachtas and quash an action that is in front of the courts.

Let us recall what the Taoiseach stated here to-day in a long and very important discussion. His argument to-day was that this is not such a unique case at all, that it is in accordance with a voluminous amount of precedent. If we accept that at its face value, then we might have a very serious discussion on certain matters; but the only thing I want to concentrate the debate on is the setting aside of the courts by the Oireachtas, even by a majority, and quashing a case that is in front of the courts without giving the courts a chance to deal with it. I have asked the Taoiseach why he steps in with this Bill in 1947 when, through his own admission, this case was brought into the courts in January, 1942?

Mr. Cafferky

This is the first occasion on which I have had anything to say in relation to this Bill and I would not consider it worth while saying anything were it not for Section 10. I think it is only right, even though I am a layman who possesses very little knowledge—in fact, none—as far as law is concerned or how it is administered, that I should say that the one thing established in the minds of the people is that no matter what kind of Government we may have, so long as the law courts remain as at present constituted we can always hope for and seek protection from them. If we are to establish a precedent of the kind here before us in Section 10, whereby the head of the Government seeks to prevent a decision of a court, I think such action would be unwise. One cannot help wondering at such a development coming from a Party leader who has constantly talked about the liberty of the individual and the right of plain citizens here and elsewhere. On various occasions he has raised his voice with reference to interference with the freedom of the people. He is now determined to set an example by interfering with a decision of a court. He does that by introducing this Bill. I consider it a shame and a disgrace.

If the Government could present a reasonable excuse for this—though I as a layman cannot imagine any excuse that could be described as reasonable— particularly in connection with seeking permission from the House to interfere with the judiciary or to prevent a justice from giving his decision, the position might be different. I know of no reason which could be given for seeking the support of the House to nullify a court decision. In this instance the case is actually before the courts and in the normal way a decision would be given, but this Bill seeks to take away the action from the courts.

It has been said that the Taoiseach has introduced this Bill to save his face, to avoid having to appear before a court of law where he would be crossquestioned by the counsel concerned. I could hardly believe, even if the Taoiseach had to appear before the courts and no matter how badly he might come out of his cross-examination, that he would dare come here and seek the authority of the House to do what he is asking us to do. I suppose this Bill will be steam-rolled through the House, no matter what may be said in opposition to it.

As Deputy Maguire said, there is uneasiness abroad. The people outside, even ordinary well-educated citizens, are unable to follow the arguments put up here by eminent men, men whom even the Taoiseach admitted are an authority on constitutional law and legal matters generally. To my mind they have put up a sensible and reasonable case against this Bill. Even though they are unable to follow all the arguments that have been put up for the last four or five days, nevertheless, they are capable of recognising that there is danger that if this Bill becomes law any future Government or even this Government can always point to it as a precedent for interfering in any other case which may be of an embarrassing nature in so far as the Executive of the country is concerned. We should not allow such a precedent to be established.

I say without any prejudice and for no other reason than that I think that the Taoiseach is undermining the morale of the people, in so far as their rights are concerned, this section should not be passed. We were led to believe that not only under the Irish Administration, but even under the British Administration irrespective of circumstances, every person, rich or poor, simple or gentle, had the protection of the law courts and that we could always avail of the law courts and the best counsel in the land to defend ourselves. The Taoiseach is evidently determined to steam-roll Section 10 through this House. There is no doubt that should he be allowed to do so, a claim in which the people not only of Ireland but across the water took great pride, namely, that the poorest citizen of the land could always seek the protection of the court and would have to accept the decision of that court, will no longer have any validity.

This section, to my mind, should never have been introduced. As other speakers have said, the only justification put forward for introducing it was the saving of a few miserable thousands of pounds, which the Taoiseach thought should not be squandered in legal arguments. I want to tell the Taoiseach that that is a very poor argument. It is a poor foundation on which to base his argument for the introduction of such a unique measure, as he himself described it. It is unique because no other Executive other than the Executive led by the present Taoiseach would dream of interfering with the courts in the way in which the Taoiseach is apparently determined to interfere. The Taoiseach has not been able to point to any similar measure being passed—at least he has not done so—through the British House of Commons or any other Parliament which is a democratic Assembly. It is no wonder that he has described it as a unique measure and that he feels that a similar measure would not be introduced again. We cannot accept his word for that. It may not be done by other Executives but we cannot accept his word, as he may not be tempted on other occasions to do likewise. It is for that reason that as a layman I am opposing this section.

I say that we should leave matters of this kind to be dealt with by the courts which are appointed for that purpose so that Parliament could devote its time to matters which are more vital to the people. The Taoiseach is failing in his duty to this House and to the people in wasting the valuable time of the House by asking it to deal with a matter such as this. I want to register my protest and to express my disgust that we should descend to such a level that the head of the Government who has been in public life for over 30 years should use his office to try to induce this House to pass a measure of this sort. I have made my protest but I realise that it will fall on deaf ears. I recognise that at the back of the Taoiseach there are men who disagree with his action but I also recognise that, as members of the Party, they will walk behind the Taoiseach into the Lobby on every single section that will be challenged in this Bill. At the same time I say, not only to the Taoiseach but to every member of his Party, that this is a matter which is of such a serious nature that Party loyalty should not be considered. No matter what promises or pledges Deputies opposite may have made to the Leader of their Party, if the Leader of the Party is determined to do something which they in their consciences believe is a deliberate infringement of the constitutional rights of the people, a deliberate mockery of the law and a deliberate insult to the intelligence of the ordinary simpleminded person in the country, I say that Party loyalty, pledges or promises should no longer oblige members of the Government walking behind the Taoiseach to deprive the ordinary people of the country of the rights which they possess. I want to protest against the time wasted and against the impudence of the Taoiseach in coming here and asking his Party and the House generally to consent to a Bill of this nature, in which he is creating a precedent for other Executives and perhaps for use by himself in the near future.

An Ceann Comhairle

The Deputy is repeating himself.

Mr. Cafferky

I have finished now.

Question put.

The Committee divided: Tá, 53; Níl, 28.

Tá

• Aiken, Frank.
• Bartley, Gerald.
• Beegan, Patrick.
• Boland, Gerald.
• Buckley, Seán.
• Burke, Patrick (Co. Dublin).
• Carter, Thomas.
• Childers, Erskino H.
• Colley, Harry.
• Crowley, Honor Mary.
• Derrig, Thomas.
• De Valera, Eamon.
• De Valera, Vivion.
• Flynn, Stephen.
• Fogarty, Andrew.
• Furlong, Walter.
• Harris, Thomas.
• Healy, John B.
• Hilliard, Michael.
• Kennedy, Michael J.
• Kilroy, James
• Kissane, Eamon.
• Lemass, Seán F.
• Little, Patrick J.
• Loughman, Frank.
• Lydon, Michael F.
• Lynch, James B.
• Breathnach, Cormac.
• Breen, Daniel.
• Brennan, Martin.
• Briscoe, Robert.
• McCann, John.
• McCarthy, Seán.
• McEllistrim, Thomas.
• Moran, Michael.
• Moylan, Seán.
• O Briain, Donnchadh.
• O'Connor, John S.
• O'Grady, Seán.
• O'Loghlen, Peter J.
• O'Rourke, Daniel.
• O'Sullivan, Ted.
• Rice, Bridget M.
• Ruttledge, Patrick J.
• Ryan, James.
• Ryan, Mary B.
• Ryan, Robert.
• Shanahan, Patrick
• Smith, Patrick.
• Traynor, Oscar.
• Ua Donnchadha, Dómhnall.
• Walsh, Laurence.
• Walsh, Richard.

Níl

• Browne, Patrick.
• Cafferky, Dominick.
• Commons, Bernard.
• Coogan, Eamonn.
• Corish, Brendan.
• Cosgrave, Liam.
• Costello, John A.
• Dillon, James M.
• Dockrell, Henry M.
• Dockrell, Maurice E.
• Doyle, Peadar S.
• Fagan, Charles.
• Giles, Patrick.
• Keating, John.
• Keyes, Michael.
• MacEoin, Seán.
• McGilligan, Patrick.
• McMenamin, Daniel.
• Maguire, Ben.
• Morrissey, Daniel.
• Mulcahy, Richard.
• Norton, William.
• O'Higgins, Thomas F.
• O'Reilly, Thomas.
• Redmond, Bridget M.
• Reidy, James.
• Reynolds, Mary.
• Roddy, Martin.

Tellers:— Tá: Deputies Kissane and Ó Cinnéide; Níl: Deputies Doyle and McMenamin.

Question declared carried.

SECTION 11.

Question proposed: "That Section 11 stand part of the Bill".

Mr. D. Morrissey

Perhaps the Taoiseach will explain Section 11 to us.

The Taoiseach

The words of the section are as clear as any paraphrase of mine could be. The section says that the High Court shall, on the application of the board, made ex parte, make an order directing the court funds to be paid to the board. That deals with the court. The second sub-section relates to the bank and states that “The bank shall, on the application in writing of the board, pay to the board the moneys on deposit in the bank”. I do not think that I could give any paraphrase which would explain more clearly than those words the meaning of the section.

Mr. Costello

There is a matter to which I should like to direct attention. Now that Section 10 has been passed, a very pretty situation has arisen. Under Section 10, it is not mandatory on the Attorney-General to move to have this action dismissed. The action can be allowed to remain as it stands at the moment. It can be left there ad infinitum without any application being made to have it dismissed. This section proposes that the moneys lodged in court shall, on the application of the board, be transferred to the board. That may be done, apparently, although the Attorney-General never does anything about the pending action and does not move to have it dismissed. We have had a great deal of talk about saving the cost of lawyers. That taunt has been thrown up against the lawyers inside this House and, by a Minister recently, outside this House, in a matter which will be the subject of comment to-morrow. Here, this Government, which is out to save the cost of lawyers and to save the fund from the depredations of lawyers, saddles that fund with two applications—(1) an application by the Attorney-General to dismiss the action —a futile, ridiculous and unnecessary proposal—and then an application, presumably by solicitor and counsel again, with attendant costs, to get the moneys transferred from the court to the board.

Mr. McGilligan

Is not that the situation?

The Taoiseach

I am not accepting that as necessarily the situation. I do not think that the costs of an ex parte application would be very much.

Mr. McGilligan

The Attorney-General need never apply.

The Taoiseach

I think that that is very unlikely.

Mr. McGilligan

He will get his orders.

Mr. Costello

That is the position under the section as it has been passed.

Mr. Dillon

Section 11 provides that, with proceedings pending in court, the Attorney-General can romp into the court, abstract all the funds in respect of which the proceedings are going on and go off with them in his hip pocket. The court will then continue the proceedings, the funds having disappeared. I am not saying that that is going to be done. But that is the Bill as it is before us. That is the statute we are going to make. We are going to do that because we are too lazy and too incompetent to draft sections in such a way as to ensure that a situation cannot arise in which the processes of the High Court will briskly proceed in respect of funds which all parties in court know are no longer there. Many aspects of this Bill tend to bring the judiciary and the courts into ridicule, but one can imagine the feelings of a judge on the High Court bench before whom this statute is quoted. He will learn from it that it has now become the custom of this Legislature so cavalierly to treat the judiciary that we are quite prepared to create a situation in which the judges would be required to continue proceedings in their own courts in respect of funds which they themselves had paid out.

The Taoiseach

Such nonsense.

Mr. Dillon

Let us go over it again so that the Taoiseach will understand. Section 10 gives the Attorney-General power to do a certain thing. It does not require him to do it. Is not that so?

The Taoiseach

We presume that, in the public interest—

Mr. Dillon

We are dealing with statute law, not with the Taoiseach's heart or with presumptions. When the judges require to know the statute law, they will look at the statute; they cannot look into the Taoiseach's heart. They will behold in this statute a proviso that the Attorney-General has a right, which he may or may not exercise, to go into the court and stay the proceedings under Section 10. As a result of that application by the Attorney-General—and only as a result of it—can Charles Stewart Wyse Power be granted his costs, when taxed and ascertained, or can Mrs. Buckley be granted her costs, when taxed and ascertained. Suppose that, between now and the time this Bill is put into operation, Mrs. Buckley vexes the Attorney-General or that "Sceilg" vexes the Attorney-General. The Attorney-General is being given power by this Bill, by Section 11, to release Mrs. Buckley and "Sceilg"——

The Taoiseach

Not by Section 11.

Mr. Dillon

He is being given power by Section 11 to release Mrs. Buckley and "Sceilg"——

The Taoiseach

He is not mentioned.

Mr. Dillon

——of all responsibility about the funds, which, to the knowledge of all parties, have passed out of the dominion of the court. Is not that true?

The Taoiseach

Section 11 does not mention the Attorney-General once.

Mr. Dillon

No. The truth of it is that the poor man does not understand what the Bill does.

The Taoiseach

I understand that Section 10 has been passed and if the arguments relate to anything they relate to the section that has been passed.

Mr. Dillon

Unfortunately, he does not understand it. If he wanted to make Section 11 common sense, he would have made it contingent on certain things having been done under Section 10.

The Taoiseach

And I have no doubt whatever, nor has anybody else, that the Attorney-General will do what we may presume is the correct thing to do.

Mr. Dillon

If we are to judge by his "andrewmartins" before this Bill was brought into the House, we have no reason to believe so.

The Taoiseach

Why did the Deputy not put down an amendment, if he thought something should be done instead of that?

General Mulcahy

To amend this Bill?

The Taoiseach

Then the Deputy does not want to have it either way.

Mr. Dillon

The Taoiseach need not get savage. His colleagues have fallen into the soup and, if he now finds himself floundering in it, he should do it with good grace.

The Taoiseach

It is the Deputy who is floundering.

Mr. Dillon

He has the Report Stage and can go into a huddle in his heart between now and the Report Stage and I am sure it will not be difficult to draft an amendment.

The Taoiseach

If the Deputy has any suggestion——

Mr. Dillon

Is the Taoiseach making a point of order?

The Taoiseach

——I will amend it, if I think it is necessary.

Mr. Dillon

If the Taoiseach wants to make a speech, he may get up in a minute and make it; but, if not, he should sit down until I have finished. It is a pity that a Bill should be brought before the House in this form, but it is worse that the Minister responsible for conducting it through the House should not realise the absurdity of it. I do not know when it is proposed to take the Report Stage, but I think I am right in saying that a comparatively simple amendment would bring Sections 10 and 11 into line, making one as bad as the other. It is necessary for the reputation of the House that, when a Bill is rotten all the way through, every section should smell with the one smell and not have a different smell on different sections.

The Taoiseach

I am satisfied that these Sections, 10 and 11, are all right.

Mr. Morrissey

That finishes it.

The Taoiseach

If anyone has any objection and wants to amend the Bill, and thinks it can be made better from his point of view, let him put down an amendment so that it can be discussed.

Mr. Costello

We have no point of view on this Bill, except the point of view of principle, but there has been a considerable amount of loose talk particularly in regard to the lawyers. I want merely to expose the incompetence of the Government in connection with this Bill. The position is that, under Section 11, the board can apply to the court for an order transferring the funds. The costs of that will presumably come out of the funds, in accordance with a subsequent section, if it is passed. Therefore, you have the costs of that coming out of the funds which are dealt with by this Bill; but the previous section, Section 10, which we have passed, makes it incumbent on the taxpayers to pay the costs of the Attorney-General to stay these proceedings. It is not the fund, which has been the cause of this pother and this Bill, that has to pay to stay the action, but the ordinary taxpayer. Why is Section 11 different from the provisions of Section 10 as regards costs and why should the taxpayer have to pay anything?

The Taoiseach

It is desirable that the board should make application itself and get the funds directly.

Mr. Costello

Why should the taxpayer have to pay the Attorney-General's costs, instead of the fund?

The Taoiseach

The Attorney-General has to face possible costs in a case like this, in defending the public rights.

Mr. Costello

He should get the costs out of the funds and not out of the taxpayer.

Question put and declared carried.

SECTION 12

Question proposed: "That Section 12 stand part of the Bill".

Mr. Dillon

Can the Taoiseach say if he knows of any trusts applying for these moneys?

The Taoiseach

I do not understand that.

Mr. Dillon

I want to inquire from the Taoiseach, before he asks the House to compel the court to declare these moneys discharged from such trusts, if any, as are attached thereto immediately before such payment, whether he can tell us if, to his knowledge, any trusts do attach to these funds, so that at least in extinguishing rights we may have an approximate knowledge of the rights we propose to extinguish.

The Taoiseach

What trusts or rights there are I do not know except the rights of the original subscribers to have the money applied as they intended. If there is any person who is charged with defending the trust individually, I am that person, because by a vote of the only body competent at the time to do it I was appointed sole trustee. I accepted that trust at the time. Because of the circumstances, I did not ask the treasurers of the organisation to hand over the moneys which they held at the time, to me in accordance with the resolution of the body which declared me trustee. The treasurers of the body had these moneys in their immediate control. What obligations of a trust character were imposed upon them or should appear naturally to be imposed upon them by their office I do not know, in view of the motion that was passed, except that they held as treasurers of an organisation, not trustees, moneys which were subscribed to that organisation and were held by them at the disposal of the proper authority of the organisation of the time. The treasurers, no doubt anxious about the position and their liabilities, put these at that time in court, where they have lain for the past 23 or 24 years.

These are the circumstances and what is said here is that if I—I had no physical possession of these moneys at any time—in accordance with the resolution that was passed, have any trust obligations, or if the treasurers or their surviving personal representatives have any obligations, they are freed from those obligations by this clause and any trusts that were there implied or otherwise are discharged.

Mr. Costello

Is it not quite apparent that this sub-clause (a) of Section 12 raises the whole issue of the principle of this Bill? In effect, it says that whoever has any claims upon this fund, they will no longer have any claim whatever after this Bill is passed. It is not a question of giving a discharge to a particular trustee who may have been trustee at a particular time and who may wish to have his legal position cleared up. What is proposed to be done by this clause is to clear the fund from all claims of every kind, class and distinction, not merely against trustees as such in reference to the discharge of their duties as such, but in reference to the objects for which they were originally subscribed, in reference to any claim that may be made against them by any person, including the plaintiffs in the present action, and against any possible claim that might be made by any subscriber to get back his subscription. That is comprehensively what is intended to be done by this section and it is not merely that casual, formal thing the Taoiseach has endeavoured to suggest is being inflicted by this sub-clause.

The Taoiseach

I have no objection to a wider interpretation.

Mr. McGilligan

The Taoiseach forgets another explanation which a Minister has been giving over the week-end, that these were moneys "that were provided in 1921 out of the funds of Dáil Éireann to maintain and strengthen the Sinn Féin organisation of the day". We are told, further, by that Minister that "like moneys voted by the Dáil to-day to meet the cost of the public Departments, the Dáil Éireann moneys, if they were not spent on the purposes for which they were voted, were to revert to the Treasury of the then Government". That takes the whole matter away out of the trust altogether. That Minister thinks that the moneys ought to go back to the Treasury. Therefore, for 15 years, the Minister for Local Government, who at one time was Minister for Finance, did not realise that he should have tried to get these moneys in earlier. The Taoiseach's new point— I may have taken him up wrong—is that if there is any trust he is the only person who knows what it is.

The Taoiseach

No.

Mr. McGilligan

As the only trustee, he must know for what purpose he was appointed trustee. Were there purposes, and can they be declared in court? The Taoiseach is now asking that this Dáil, which has already been described as the sovereign court, should decide on this, because he says: "I am the only person remaining who was a trustee at any time and who knows what the objects are; I can tell the court what they are." Is that the situation that we have now revealed? Can I be referred to any piece of legislation in which a declaration of that sort has been made referable to funds that are before the court and the subject-matter of an action? I do not think there is any reference that can be given.

An Leas-Cheann Comhairle took the Chair.

The Taoiseach

The Deputy is very slick. He says because I say I am the only trustee that, therefore, I say in the same breath that that implies that I am the only person who knows what the trusts, if any, were. That is ridiculous. Because a person is appointed a trustee does not mean that he is the only person who knows. I was appointed a trustee with the responsibility that would flow from being a trustee for the guardianship of the funds—to keep them for disposal by the body to whom they belonged and dispose of them in accordance with the constitution of that body. To say that I was appointed a trustee and that it should follow from that that I was the sole person who knew what they were for is, of course, ridiculous.

Mr. McGilligan

Do you know what the trusts were?

The Taoiseach

The position with regard to the trusts so far as I was concerned, was this, as I have said already, the funds did not come effectively into my hands. Therefore, I was in no position for exercising any judgment with regard to how they should be disposed of, or whether the methods proposed were in accordance with the constitution of the body to which I would be responsible. These moneys, as I have said, were subscribed for the benefit of an organisation which at that particular time had become the civil arm of the Government. It was helping the military on the other side to establish that body and keep it in a de facto position in the country. I would not agree with the argument stated to have been put forward by the Minister for Local Government.

People may differ as to the interpretation of a situation. In my opinion, the moneys belonged to that body, to be used by it in accordance with the purposes for which they were subscribed. The fact that they belonged to that body and that it was using its resources to establish the Government of the day—to get it into a de facto position—did not necessarily mean, as is reported as being the view of the Minister for Local Government, that these funds were strictly Dáil Éireann funds. They were funds that were being used by way, if you like, of supplementing the funds of Dáil Éireann which were being used more directly in regard to the Government activities of the day. The Sinn Féin organisation was an auxiliary. It was the civil arm of the Government, and being an auxiliary I do not think it was bound to hand over its funds to Dáil Éireann. It is not difficult for a person to mix up the two things. I only want to say that I do not agree with the view attributed to the Minister for Local Government. I have not seen the statement. If the statement is as was stated in the House, then I have no difficulty in saying that I do not agree with it.

Mr. Dillon

In the kept newspaper?

The Taoiseach

I have a great deal of work to do and I cannot check up everything that is reported in a newspaper. I have not the same time as the Deputies have for that.

Mr. McGilligan

You have had much more time on this matter than we have had. This is a simple statement and admits, I think, of immediate denial by the Taoiseach. The Minister for Local Government says that these moneys "were moneys that were provided in 1921 out of the funds of Dáil Éireann". That is wrong is it?

The Taoiseach

I do not agree with it.

Mr. McGilligan

That is completely wrong. They were moneys "to maintain and strengthen the Sinn Féin organisation of the day". That might be interpreted that they were provided by Sinn Féin to build up Dáil Éireann long prior to 1921.

The Taoiseach

I have not seen the Minister for Local Government about it and I do not know, but if that is correctly reported I do not agree.

Mr. McGilligan

I am sure that he was at least as correctly reported as the Taoiseach, but the reporters were brought under condemnation.

The Taoiseach

Everyone knows that mistakes can be made at times.

Mr. Dillon

Particularly when you do not agree with the Taoiseach.

The Taoiseach

You very often change your reports.

Mr. Dillon

Do you tell me that?

The Taoiseach

Yes.

Mr. Dillon

You did not take that precaution?

The Taoiseach

No.

Mr. Dillon

I have seen them up there many a time scratching it out for you.

Mr. McGilligan

The trusts are now capable of a declaration, but I would not like to be the court or the judge trying to decide what were the trusts after the Taoiseach's lucid explanation. He appears to think that it was a satisfactory explanation of the trusts attached to these moneys. Why would he not give it in court? Is not that what the courts are there for—to have other minds brought to bear on the type of evidence that would be given by people who purport to say that moneys were collected for a purpose and that trusts were attached to them? The Taoiseach finds it easy to say here what the trusts are. I asserted before that what is being evaded is that he does not want to go before the courts of justice and have the Bible put into his hands and made tell the truth, the whole truth and nothing but the truth, and then say what the trusts were. That would not suit because it means undoubtedly a whole lot of the parade he did between 1924 and 1926 would be shown up.

The Taoiseach, in answer to me in connection with that matter of giving evidence in court as to what the trusts are, says that it is only quibbling for me to introduce into this House this point, that the defence with regard to these trust funds is that the organisation to which the plaintiffs claim to be the successors was defunct in 1924. I personally would like to see the Taoiseach standing over that statement after having been sworn in court because of what we know of his performances down to the spring of 1926. The answer made to me on that is, I know very well, that you must deny. That is more than a denial. That is a positive statement put on the defence files.

The Taoiseach

By whom?

Mr. McGilligan

By the Attorney-General—that the organisation had become defunct—I am not sure if "defunct" was the word he used but, at any rate, a word corresponding to it—before the money was lodged in court, and it was lodged in court in 1924, and the Taoiseach would be called in to the aid of the Attorney-General whose counsel would have to go in to plead that particular case.

The Taoiseach

The Deputy knows that the Taoiseach would not be called in to aid anybody to substantiate any theory, but to tell the facts as he knows them.

Mr. McGilligan

As he understands them. That would be a gorgeous performance. But he would in fact be called in, as I understand it, by the plaintiffs——

Mr. Dillon

Mrs. Buckley.

Mr. McGilligan

——because the plaintiffs have said in a letter to the newspapers that the Taoiseach knows he would be the chief witness in regard to these funds and the trust attached to them and they point to the well-known fact that the Taoiseach paraded himself publicly as being head of this organisation down to the spring of 1926. The only defence of any real type that the plaintiffs have to meet is that they could not be the successors of Sinn Féin because Sinn Féin had lapsed before 1924—that is, according to the Attorney-General—and there are many people who are ready to go to court, I understand, and to produce letters and their membership tickets and invitations and summonses to a meeting, signed by the Taoiseach acting and parading himself as head of the Sinn Féin organisation. So, he would be brought in to aid them, they having a knowledge that one of the pleas they have to get over is that the organisation had become obsolete, defunct, had gone out of existence, prior to the year 1924, and they would have a very good aid if the Taoiseach would say down in court what he has said here in a public way.

The Taoiseach

And I would say it.

Mr. McGilligan

Then they would have powerful aid but that means they are calling in the Taoiseach—these insignificant people—to show that those, whose merits have been denounced in this Dáil, have merits and the way they would substantiate and evidence them would be through the mouth of the Taoiseach and yet the Taoiseach now asks the House to say there are no trusts, at least, if there are any, we are going to wipe them out. These people purport to say what they were and they say, as far as the line of succession is concerned, the Taoiseach is the man to prove their case.

Mr. Dillon

Let us not lose sight of the fact that if in the process of so proving, the Taoiseach's tongue should cleave to the roof of his mouth, they can fall back on Deputy Larry Walsh. He testified in very plain accents here that 40 years' experience as a member of the Sinn Féin organisation entitles him to say, and to challenge contradiction from any other citizen of this State, that Mrs. Buckley and Sceilg were only the remnants of the Sinn Féin executive.

Mr. L.J. Walsh

The skeleton.

Mr. Dillon

The skeleton. A very active skeleton, they appear to be. I think the Government should have some sympathy with us because in a matter of substance arising out of this Bill we hear a wide variety of tunes being played on the Government benches. The Taoiseach says, and the Attorney-General says, that Sinn Féin had ceased to be in 1924.

The Taoiseach

Who says that?

Mr. Dillon

Perhaps I am wrong. I thought the Taoiseach and the Attorney-General said it.

Mr. McGilligan

The Attorney-General.

The Taoiseach

The Taoiseach is not responsible for the legal case.

Mr. Dillon

I beg the Taoiseach's pardon. The Attorney-General says——

The Taoiseach

Yes.

Mr. Dillon

——that Sinn Féin had ceased to function in 1924; the Taoiseach is non-committal and Deputy Larry Walsh is a whole-hogger for 1947. Now, I am the last one to give testimony on it for I know nothing about it, but as a Deputy it is my obligation to make up my mind in the light of the statements made by those in a position to know, and these are three separate gentlemen, all of whom have from the point of view of an ordinary observer an equal standing of authority in a matter of this kind for testimony on that particular fact. Very well, then. The second fact that emerges and which is peculiarly affected by Section 12 is the trust. The ex-Minister for Finance of this Government stated at a céilidhe on Friday night that these funds were voted by Dáil Éireann in 1921, passed over to the Taoiseach ultimately as the final trustee with an obligation attaching to them which devolved upon the Taoiseach to return them to the Irish Exchequer if and when the purposes for which they had been voted by Dáil Éireann in 1921 ceased to call for their employment. That is his story. His story is that for the last number of years the Taoiseach has been in breach of trust, that he had a duty on him to do a certain thing or to see it done and that he did not do it. The story of the ex-Minister for Finance is that he had a duty as a Minister to collect for the Irish Treasury funds that he knew belonged to it but he did not do it. He does not say why but he did not do it. That is his story. Now the Taoiseach comes along and he says that is all wrong, no such trust as that alleged by Deputy MacEntee attached to these moneys and that if he thought even such a trust attached to them, he is wrong. But there did attach to these moneys those very trusts that Mrs. Buckley says attached to them. They belong to Sinn Féin, and so long as the purposes of Sinn Féin continue in existence they should be used by Sinn Féin. That is what Mrs. Buckley says. But observe this interesting fact, that half of Deputy MacEntee's story is denied by the Taoiseach and, therefore, his whole contention must fall to the ground.

An Leas-Cheann Comhairle

The Minister for Local Government.

Mr. Dillon

The Minister for Local Government speaking as ex-Minister for Finance. Half of his tale is disbelieved by the Taoiseach. Therefore, he is swept into the ash-can. Half only of Mrs. Buckley's story is disbelieved by the Taoiseach. Therefore, into the ash-can with her. Sceilg's version is not acceptable. Into the ash-can with him. Deputy Larry Walsh had better be careful. But the truth of it is that it is hard to take all this seriously because the purpose of every section in this Bill, no matter what they purport to do under it, is to make it sure and doubly sure that so far as the Taoiseach is concerned, neither at the invitation of the Attorney-General nor of Mrs. Buckley nor of Sceilg nor of anybody else will he have to go into the witness-box with a Bible in his fist, and all the talk of trust is so much eye-wash, but it is a disagreeable thing that this House should be called upon to use its power to sweep aside by statute that which in any civilised community is regarded as one of the most sacred of all things — trusts, things held in trust. It is a nasty thing to have to do and it is a bad precedent. I would remind the House again to remember the quotation provided by Deputy Coogan from Junius— precedents, bad precedents, are dangerous things, and so surely as they are accepted will be used for worse purposes at a later date. I hope that on this section where the House for the first time declares its intention of sweeping trusts away without even pretending to know the nature of those trusts, there will be a division so that some of us at least may go on permanent record as decrying this method of procedure.

Mr. Costello

I should like to make one suggestion to the Taoiseach which he will probably not regard as helpful. I would direct his attention to the fact that there is one trustee mentioned in this section to whom it is very properly proposed to give immunity from all actions, proceedings, costs, expenses, claims and demands arising out of the administration of this trust. If this Bill were proper it would go through. I gather from what the Taoiseach stated some little time ago that he himself was not merely a trustee but for some time and some unspecified period the sole trustee, and doubtless very magnanimously the Taoiseach is leaving himself open to actions for breaches of trust, to action for damages and he is not getting any money at all.

Mr. Dillon

It would be a shame if Mrs. Buckley came after him again.

Mr. Costello

Some of the plaintiffs in the present proceedings may turn their former action as it at present stands in court full tilt against the Taoiseach in his capacity as additional trustee. He gets no immunity under this section.

Mr. Dillon

I gave that advice to the Taoiseach as one of the very much despised lawyers.

The Taoiseach

I am very grateful to the Deputy.

Mr. Dillon

Six-to-four there will be an amendment from the Government for that.

The Taoiseach

Deputy Dillon, of course, is running over the whole gamut again trying to make out that there is a difference of opinion. Deputy McGilligan comes along and again uses his knowledge as a lawyer to confuse the minds of people who are not lawyers. Deputy McGilligan knows perfectly well that if the Attorney-General were to put up an effective pleading against the claim of the plaintiffs and if he were not going to accept as admitted everything they said he would have to deny it and anything he did not deny would be admitted. If they were going before the court the duty of the Attorney-General would be to put them on proof and make them prove and substantiate what they claim, that is, that they are the body entitled to get these funds. In order that that would not go by default it was absolutely necessary for the Attorney-General to deny it.

Mr. McGilligan

What?

The Taoiseach

I have nothing whatever to do with the correctness or incorrectness of what the Attorney-General has done. I believe that he is competent, that he knows his business and that he did it in the most effective legal way to put the plaintiffs on proof so that they would be required to substantiate their claim. The Deputy wants to make it out that I would go into the court as a person with a thesis — that I would go into the court as a witness. My duty would be not to maintain a thesis, not to act as defendant, but simply to give the facts as I hope I know them. I have, however, the right to see that the views which I hold are in the public interest and that these views should be maintained. It would be for the court to decide this question but I believe that the public interest demands that it be decided here and that is the whole purpose of the Bill. Everybody knows that these funds were subscribed under a special set of circumstances here: that the organisation to which they were subscribed was split at least in two very soon after the time when, in view of the possible split, I was made trustee: that after that an effort had been made by me to reorganise the organisation and to try, if possible, to get it back to its previous position, to get the support of the Irish people for it: that at a later period there was another change of a substantial character in the organisation and that following that change the position so altered from what it was some 25 years ago that neither does the body that is claiming the funds now in my opinion represent the views of the people who subscribed nor is its position substantially the same. It is because the position has completely changed that I say that the main body of the Irish people who subscribed these moneys could, if their names were on record, do the very thing that has been suggested by Deputy Costello — come in and make claims against these funds if they were not debarred by, let us say — I do not know enough, I will have to depend upon the Deputy to put me right — a statute of limitations, barring claims after that length of time. I will answer Deputy Maguire by saying that I do not know that any debts which were due by the organisation at that time could be paid out of these moneys at the present time.

There was an attempt made, on the same lines as the Erasmus Smith case that has been quoted here, to get agreement and if there was agreement I am not going to suggest that this Bill would be quite the same coming before the Dáil as it is in its present position. Each one of us here can express his opinions and his view. I am expressing mine and I am responsible only for the views I express. I may be wrong. My views are that if I were able to get agreement amongst all the parties, and say "This is an agreed matter"— I do not know whether in that event it would be necessary to come before the Dáil, but simply go to the courts.

Mr. McGilligan

Quite definitely. We tried to tell Deputy O'Connor that.

The Taoiseach

I am not a lawyer but to my mind it is the common-sense view. I forget the circumstances now exactly which made the Erasmus Smith case a subject of legislation. It probably was in order to provide that certain things which were in the agreement were effected. I have not had time to look at it but I do know that one of the moving factors which brought about the agreement in the Erasmus Smith case was precisely to prevent the wasting of the funds lodged. The case had gone on for a lengthy period. All the parties concerned saw themselves faced with the prospect that they might continue their law proceedings and at the end the whole of the money would be spent in legal costs and nobody would have it at the end. I think that a sum of £30,000 or £40,000 — I forget the figure — had been spent and they were wise enough to come in and cut their losses at that stage and try to get a settlement for the future. I wish to goodness there was some prospect like that in this case; I would be very pleased with it.

It was suggested, these moneys having lain in court over that long period of 23 years with no active claimant coming forward, that it was time to dispose of these moneys, now that the second treasurer had died, the second person who was responsible. The personal representative naturally wanted to be clear of any implications in regard to that trust as far as he was concerned. Having despaired of any hope of agreement with any people who might feel they had a claim, I tried to get an agreement even on the method of disposal of these moneys by the body who were actively in control of them back in 1922 or so.

Deputy Dillon, of course, tries to twist what I said. I did not care for this particular method of using the funds. I would have preferred, on a sort of cy pres doctrine, if you like, that they should be applied to some purpose that was common to the original organisation, to the reorganised organisation in my time, and to those who may regard themselves as belonging to that association or organisation to-day. As I said, I did not see any hope whatever of getting that. But I was anxious that those who still survived of the executive at the time when the organisation was in its original form should agree upon the purpose to which the funds should be devoted. This present method of disposal was suggested to these and, so far as I know, there was a disposition to agree. In order to make the agreement as effective as possible, it was proposed or intended that there should be a meeting of that body, irrespective of the different views of various members, and that that meeting should, if possible, agree upon a scheme for the disposition of these funds, it being understood that the Dáil, by legislation, would cut the knot and make these funds available.

That is the position as I see it. I have no doubt in my own mind anyhow that, substantially, these are national funds and that to do substantial justice these funds had best be dealt with here by this Parliament. Unfortunately, political tactics, in my opinion—I may be wrong — have suggested that this should be approached in quite a different way. I cannot help that. In a democracy you have to take the good with the bad; you have got to face this.

Mr. McGilligan

It is a bit hard.

The Taoiseach

It is true.

Mr. McGilligan

It is hard as a democracy to bear that.

The Taoiseach

It is the truth. If I wanted to, I could show the first reaction of the Leader of the Opposition to this proposal and the position which has developed since. I have been taunted with—perhaps I am going outside the section——

Mr. D. Morrissey

Not too far.

The Taoiseach

I am trying to do my best to keep reasonably to it. The trouble is that in talking about trust funds it is very hard to deal with the matter on a narrow basis. I do not want to trespass on the rules of order or lengthen the time which this Bill is taking.

Mr. Moran

Everybody else went outside the section.

Mr. McGilligan

Trusts are in the section.

The Taoiseach

I have been taunted because I used the phrase that this House was a sovereign court of justice. I used it in a certain context and I believe I was perfectly right and that my law and my theology, notwithstanding what Deputy Costello said, were both correct.

Mr. Costello

I do not know anything about theology.

The Taoiseach

The Deputy did presume on that occasion to know something about it when he said that I was wrong in both my theology and my law. I believe I am right in both. As I think I said to the Deputy on one or two occasions, I would love to hear him outside this House giving an opinion on law. Every opinion he gives here loses its value as given by a legal person because it is completely coloured by his political views. Time after time in this House he has told me that certain things were unconstitutional and could not be done when it was proved that they could be and that he was wrong legally. I believe that if he were advising a client outside he would not act in that particular fashion.

Dr. O'Higgins

He brought you to court a few times and upset you on constitutional matters.

The Taoiseach

The Deputy talks about the Constitution. He knows well that we cannot here act effectively in an unconstitutional manner.

Dr. O'Higgins

Nevertheless, you tried.

The Taoiseach

That is a different thing. We do not try deliberately but, as with other people, it may be found that our view of the law is not the Supreme Court's view. That has happened and will happen no matter how able the legal advisers are and no matter how able the Government of the day are. But the protection of the citizen is in the written Constitution which has to be interpreted, not here, but by the proper authority for interpreting it. Anybody who thinks that we are trying to pass here an unconstitutional measure, whether a Deputy or an affected party, has his remedy. I asked some Deputy this evening who was talking about law, what was law. I was rather anxious to know what his view was of law and what it means. I have not had time to look up any authorities, but it seems to me that when we make laws we determine rights in one form or another; that the making of laws is the determination of rights and that when we pass any measure here we affect the rights of one section of the community as against another; that every Act — I will not say every Act, because it may happen that some particular Act does not, though I find it difficult to think of an example — but, normally, we do alter rights by means of our Acts in so far as we judge between the rights of one section of the community and another section, or I would say, even in the case of an individual, that we are acting broadly as a court of justice in regard to the rights of one section of the community as against another and that we do that with the ultimate purpose of the public good. It is in that sense I said that in my belief we were a court of justice here and that we are determining rights. We have to have regard to fundamental justice and equity as between those who are affected.

Mr. D. Morrissey

This is all strictly relevant to Section 12?

The Taoiseach

It is strictly relevant to the fundamental question we are being asked.

Mr. D. Morrissey

I am only raising the point of order because the Taoiseach himself was very insistent a few moments ago that we could not talk about Sections 11 and 12, although they go together. Now he is giving us a complete Second Reading speech.

The Taoiseach

I am prepared to sit down.

Mr. D. Morrissey

I would love the Taoiseach to continue, but what I really wished to remind the Chair was that those who may desire to follow the Taoiseach might be given at least part of the liberty that he has been given.

The Taoiseach

I understood it was accepted that the trust brought in the whole question.

General MacEoin

I do not want to develop the Taoiseach's arguments on Section 12, but it struck me very forcibly that the arguments he made in support of the section were not adequate. I respectfully suggest that the Taoiseach should reconsider the whole matter. It is quite plain that while he was speaking he was labouring, and labouring very heavily. He was not quite happy, and I submit that he was making a case which he is not just in love with. That is my view.

It is true that trusts have been established in this country from time to time in the national interest and among these trusts the Sinn Féin funds trust was one of the most important. The trust the Taoiseach now proposes to establish is also a very important one, but I suggest he has taken a very peculiar line. In this section — paragraph (b) — he indemnifies one member of the trust completely and he does nothing to indemnify the legal successors of the deceased trustee. By the vagueness of this section the Taoiseach has opened up a line in which the legal representatives of the late Eamonn Duggan can be sued, and there is a precedent for that in the income-tax code, under which, down to the sixth or tenth generation, people can be sued. I do not see why the Taoiseach or his legal advisers, when they were framing this section, put only one person in. I do not see why they did not indemnify all the trustees.

The Taoiseach

The trust devolves on the surviving trustee.

General MacEoin

I would like the Taoiseach to reconsider the matter. I am not a lawyer and therefore, I presume, my opinion is as good as the Taoiseach's in that respect, because he says he is not a lawyer either.

Mr. Costello

He is a lay lawyer, a Capel Street lawyer.

General MacEoin

I feel these parties should be coupled. I am in a rather difficult situation. As a member of the old Sinn Féin organisation and as a person who subscribed funds to it, I feel I have as much right as any member of that organisation to say what should be done with the funds. But I was not consulted.

The Taoiseach

Say it now; you have a wonderful opportunity.

General MacEoin

I am not going to get into any acrimonious discussion on the matter, but I will put this point to the Taoiseach. There is another fund in this country, of equal importance to the Sinn Féin funds, in which I have a right. Will it mean that when I take the legal steps I am entitled to take as a citizen to get repayment of the money in that fund belonging to me, if I take that case into court the Government or the Parliamentary majority in this House can bring in a motion or a Bill to deny me my rights? If they do, there is neither law nor equity.

I am a free citizen of this country, having all the rights and privileges and responsibilities of a citizen, and I submit nobody can take them off me. But a Parliamentary majority over there claims the right to do it. I say that they should not and that they should be very careful before they take any rights from citizens. It is true they can do things for the good order and good government of this country, but once they infringe on my rights as a citizen there will have to be very grave reasons why they do so.

I say the Taoiseach is making a very grave mistake. I am not trying to play any political trick, nor do I intend to say one word more after this in regard to this matter. I suggest the Taoiseach should very carefully reconsider this whole matter. I have given him a hint that there is another fund of equal importance, with perhaps more money in it, and, if he establishes this precedent here, then he is interfering with my rights as a citizen and I will try to resist him to the best of my ability.

Mr. M.E. Dockrell

Speaking earlier to-night I mentioned that we were in this particular instance making a law deciding an issue and the Taoiseach asked me what the definition of "law" was. I looked it up in the Oxford English Dictionary, a work perhaps not unknown to the Taoiseach.

The Taoiseach

It is interesting to see it used by the other side now.

Mr. M.E. Dockrell

It has its uses. I was only following humbly in the footsteps of the Taoiseach when I looked up the definition of that word in that dictionary. It says:

"The body of rules, whether proceeding from formal enactment or from custom, which a particular State or community recognises as binding on its members or subjects."

That is the definition of "law". I said that a law must have universality or at least widespread application; that, I think, is inherent in that definition. The definition, let me repeat, sets out that "law" is "The body of rules.... which a particular State or community recognises as binding on its members or subjects". This is not binding on all cases; it is binding on a particular case, but it is establishing a bad precedent which may afterwards be used in all cases.

Mr. McGilligan

It is a good thing, even at this late hour of the night, to get the Taoiseach's agreement as to the very clear distinction there is between what happened in the Erasmus Smith case and what happens here. I was hoping that Deputy O'Connor might have remained in the House because he had made a statement earlier on this matter. In any event, the Taoiseach has agreed that the Erasmus Smith legislation was a matter of consent. This is not. I take it that we shall hear no more about any analogy in connection with the Erasmus Smith legislation after the Taoiseach has given a hint to his Deputy.

Mr. Moran

Why was it brought in here?

Mr. McGilligan

I do not know.

Mr. Moran

If you do not know, why do you not find out?

Mr. McGilligan

May I ask the Deputy to tell me?

Mr. Moran

I am asking you.

Mr. McGilligan

I say I do not know but I do know this: the Erasmus Smith legislation refers to an agreement. Does this refer to an agreement? Is that not the difference?

Mr. O'Connor

It is not.

Mr. McGilligan

It is at least a difference.

Mr. O'Connor

Will you tell the House why it was necessary to have a statute passed in the Erasmus Smith case?

Mr. McGilligan

I do not know.

Mr. Coogan

It was set out in the preamble to the Act.

Mr. McGilligan

I do know that there was an agreement in the Erasmus Smith case. Is that not so? The Taoiseach said he hoped at one time that the attempt to get an agreement on the lines of the Erasmus Smith case might have succeeded.

The Taoiseach

Many years ago.

Mr. McGilligan

But it did not succeed. Therefore there is that difference. That is the big difference.

Mr. O'Connor

There is always a difference.

Mr. McGilligan

It does not do to do Humpty Dumpty and to say that just because there is a point of difference, that will always distinguish cases. The big difference here is that we are thwarting people out of their rights. In the Erasmus Smith case they agreed to what was proposed.

Mr. L.J. Walsh

Because they had more sense than the Opposition here. The Erasmus Smith governors agreed, because they knew there was legislation coming here if they did not agree.

An Leas-Cheann Comhairle

Did we not have all this on a previous section?

Mr. McGilligan

The Taoiseach referred to the Erasmus Smith case on this section and I am entitled to follow him to counter what he said. I do not know that the position was as Deputy Walsh says. There probably was a dissident part of Sinn Féin to which the Deputy belonged. It might well have been that a good deal of money could have been saved, if the two branches of Sinn Féin, the dissident and those who remained at headquarters, came together and arrived at an agreement, but they did not and the courts are therefore asked to administer justice as between these two people.

Mr. L.J. Walsh

That is what we old Sinn Féiners do not want. We want the Dáil to deal with the matter.

Mr. McGilligan

So it frankly comes to this, that the courts may be all right for other business but once Deputy Walsh makes up his mind in any matter, then we come to the sovereign court of the Dáil and we will not let the matter go to the courts of justice. What is the good of this little volume, with all the piety about the courts of justice——

The Taoiseach

Does the Deputy not know——

Mr. McGilligan

"Justice shall be administered in public courts established by law by judges in the manner provided by this Constitution."

The Taoiseach

If anything is done in this House contrary to that it is null and void.

Mr. McGilligan

"Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution." We are administering justice in this case. It is clearly not being done in a court of law. It is clearly not being done in the manner provided by the Constitution. What is the good of having all this record to mislead the people, if on occasions when it suits us we suddenly transform this legislative body into a sovereign court of justice and later into a sovereign court of equity? Because Deputy Walsh does not want it to go to the courts, he says it is going to be done here and that is all there is to it.

An Leas-Cheann Comhairle

The Deputy might now relate his remarks to the section.

Mr. McGilligan

I am relating my remarks to the Erasmus Smith case to which reference was made by the Taoiseach. The Taoiseach has rather lamented that we could not get an agreement of that type. Let him have his lament but what emerges from the necessity for that lament is that we did not get agreement.

The Taoiseach

Therefore the funds are to be squandered.

Mr. McGilligan

That is the distinction between his case and the Erasmus Smith case. That is clear. The Taoieach has attempted to counter another point I have twice made with regard to the trust fund, that on the file there is a pleading by the Attorney-General, that the organisation known as Sinn Féin was defunct — I am not pretending that that is the exact word used but that is the effect of it — prior to the moneys being lodged in court. The answer I have to that is that I know from the legal angle that one must deny anything made in a pleading, otherwise it is taken as admitted but they have done more than that here. What the plaintiffs have said in their statement of claim is that they were the inheritors of the old Sinn Féin Party. The traverse that is required to that is merely: "You were not" but for some reason that I do not know the Attorney-General of the day went on to say: "Sinn Féin died before 1924." That is more than a denial. That is an averment which they will have to prove. It is certainly carried beyond the ordinary denial. That is why the applicants say that they have a very strong witness in the Taoiseach.

It is hardly possible that the Taoiseach could go into court and give evidence of any value to the people who make that plea, that the organisation died before 1924, when dozens of people can come before the court carrying membership cards of Sinn Féin with a summons from the Taoiseach to a meeting in the spring of 1926 — the summons being signed by him as president of Sinn Féin. Did that not happen? The Taoiseach knows it happened. It would be an interesting situation to see the plaintiffs bringing the Taoiseach into court if it were only to meet that simple point. Whatever it may have to do with the substance of the case, here is the point on the pleadings, a point which the plaintiffs had to meet: "Sinn Féin died in 1924". Then we shall have the Taoiseach summoned to the witness box and asked: "What was the last day on which you operated as president?"

The Taoiseach

That would not be the question——

Mr. McGilligan

That would be a relevant point, would it not?

The Taoiseach

The Deputy is skipping a very important part and he knows it.

Mr. McGilligan

What is the important part?

The Taoiseach

The part that would have to be considered——

Mr. McGilligan

Was there continuity?

The Taoiseach

I tried to reorganise——

Mr. McGilligan

I was asked to give way on an interruption but not to a speech — not at this late hour of the night. I want to make a small point. If there be raised as an entry on the pleadings the point that Sinn Féin died in 1924, then at least some opportunity should be given to the plaintiffs to take the Taoiseach into court to prove that he promulgated himself as head of Sinn Féin as late as spring 1926.

An Leas-Cheann Comhairle

Does this arise on the section?

Mr. McGilligan

Of course. The trusts have to do with the section and allied to the question of the trust is the question as to who are the survivors of the original representative of Sinn Féin. The plaintiffs claim to be that. The Attorney-General says that Sinn Féin ceased to be in existence in 1924 but there was one great man who paraded himself as head of the Sinn Féin organisation——

The Taoiseach

Paraded himself?

Mr. McGilligan

I am sure I am be-labouring the point but there are some back benchers who do not seem to undersand it and I want to make it clear that the plaintiffs would have a valuable light in the Taoiseach on that point. It would be a matter of relevance to the court——

The Taoiseach

Why should I be afraid?

Mr. McGilligan

Have I mentioned the word "fear"? I may be working up to it but I have not mentioned it yet. Let the Taoiseach wince when he is really wounded but not in anticipation. Would it not be an interesting thing and a relevant thing if three or four dozen people came into court and each said: "I attended a meeting of that organisation in the spring of 1926. I was summoned there. Here is my card. I know the Taoiseach's handwriting, and that is it, and he is described there as President of Sinn Féin." It may have nothing to do with the action, but it at least kills the point that the organisation was dead in 1924.

The Taoiseach

You are passing over the material point.

Mr. McGilligan

I am only on the one point: does that not kill the contention that Sinn Féin was dead in 1924?

The Taoiseach

The organisation to which these moneys were subscribed.

Mr. McGilligan

That is another side of it. All that these people are countering at the moment is the suggestion that the organisation to which they belonged, called Sinn Féin, was dead in 1924. If the Taoiseach likes, he can go in and say: "I really was hawking a bit of a corpse around the country and trying to breathe life into it, but that is the situation and let the court judge of it." I would agree that the substantial matter, the gist of the action is: did Sinn Féin survive? Are there any trusts discoverable? Has the purpose for which these moneys were subscribed for Sinn Féin survived and if these people be the successors, are they the people properly entitled to discharge the trusts? Surely that is the gist of the action. Were there trusts to which these moneys were attached? If so, who is to distribute them and to what purpose? Surely on any of these considerations the point will arise: do we know about the original trusts? Do we know who originally got the moneys? Is there a line of continuity? Are these people in the line of succession?

Mr. O'Connor

And is the organisation still there? Is that not the point?

Mr. McGilligan

According to the file, the main point is whether the organisation died in 1924, and certainly that point can be killed deader than the alleged death of Sinn Féin.

Mr. O'Connor

What difference would a date make?

Mr. McGilligan

Possibly no difference, except that it is a material point, according to the Attorney-General, because he makes the point and makes it beyond a traverse. There in any event were the issues to be decided. Why could the courts not decide them? I want to know what is the reason for saying that the trusts attached, if any such trusts were attached, to these moneys, are to be discharged or deemed to be discharged? What is there amazing about this case that makes us take this amazing attitude towards it? The courts often decide trust matters. They often have to decide whether people are the legitimate successors of old-time trustees and often have to decide whether it is possible to discharge the trusts attached to a particular fund, and they certainly could, on an application made to them in this connection, be asked to arrange a scheme, if the old purposes are no longer open. Having arranged a scheme, they could be asked to administer the trust along the lines of the scheme, and, if they were asked to do that, we still keep inside this book which is so much thought of at times, the Constitution. We are still having justice administered in courts and by judges made independent under the Constitution and asked to discharge their independent functions in accordance with the Constitution. There is nothing hard about that.

The Taoiseach

Except that there would be nothing to distribute by the time it comes to be done.

Mr. McGilligan

Why would there not be? We are now apparently on the money argument. We are going to throw away £8,000 in money to people who have already been held out in this House as being not worthy of any costs because they have not got a case.

The Taoiseach

In the Erasmus Smith case, the losses had to be cut at £40,000.

Mr. McGilligan

It was done by agreement. That is the thing you can never get over. In the Erasmus Smith case, it was done by agreement.

Mr. Moran

In order to save the fund.

Mr. McGilligan

By agreement.

The Taoiseach

To save the fund.

Mr. McGilligan

By agreement, all the time.

The Taoiseach

Suppose they did not?

Mr. McGilligan

If they did not, would the Dáil have stepped in?

The Taoiseach

It might have.

Mr. McGilligan

Would it?

The Taoiseach

It might have.

Mr. McGilligan

Then let us know where we are. On any case in which the Dáil is of opinion that funds are being dissipated, the Dáil will step in, the Dáil may step in. Was the Erasmus Smith case a public matter?

Mr. L.J. Walsh

Of course it was.

Mr. McGilligan

Was it a public matter?

The Taoiseach

I would require to have the facts of the case in front of me. I would then be able to make up my mind, but if it were a public matter, I would not have any hesitation in preventing the money being spent, and I would think it a duty to do so.

Mr. McGilligan

Had the death of the late Chief Justice anything to do with the Erasmus Smith case being decided in the way it was decided?

An Leas-Cheann Comhairle

The Deputy had better let Erasmus Smith be buried.

Mr. McGilligan

I object to having discussion curtailed because of any boredom in the Chair. The Erasmus Smith case——

An Leas-Cheann Comhairle

It has no relation to this section.

Mr. McGilligan

The Erasmus Smith case is very analogous and was so introduced by every speaker, and notably by the Taoiseach, without interruption by the Chair. I demand the same rights as the Taoiseach got. I suggest that the Erasmus Smith case went to Dáil Éireann only because of the death of the late Chief Justice.

Mr. Moran

You said a moment ago that you did not know why.

Mr. McGilligan

I said I was not concerned with it and I say now that it went to Dáil Éireann only because of the death of the late Chief Justice. I should like a denial, if a denial can be made.

Mr. O'Connor

You are terribly worried about Erasmus Smith, whatever be the reason.

Mr. McGilligan

Only because the Deputy was befogged enough to try to bring this Dáil to the conclusion that it was the same as, or on a footing with, what is proposed here.

Mr. O'Connor

I said that and I repeat it.

Mr. McGilligan

You will repeat it?

Mr. O'Connor

Yes, and the Deputy might save the time of the House by leaving it at that. Let us agree to differ.

Mr. McGilligan

If the Deputy is so blissfully ignorant as that, it were folly to give him any wisdom, but the Erasmus Smith case is completely and entirely different from this matter. It was a matter of agreement. If you could get agreement in this case, the whole complaint disappears and nobody could say that you were cutting across a litigant's rights in court. I say you are doing so now.

The Taoiseach

This can be settled if it is contrary to the Constitution.

Mr. McGilligan

I do think that this is a very important matter we have reached this evening. This booklet, with our courts and the administration of justice in public courts and an independent judiciary — all that can be swept aside if this Dáil comes to the conclusion that money is being wasted in litigation and that it will step in and decide, without the agreement of the parties, in favour of one or the other.

The Taoiseach

The Deputy knows that that statement is not correct, that we could not sweep that "booklet" aside by anything we do here.

Mr. McGilligan

You are sweeping aside that part of the booklet which says that justice is to be administered in public court.

The Taoiseach

The Deputy knows we cannot.

Mr. McGilligan

You are doing it, and you are relying on the courts saying that you are entitled to do it.

The Taoiseach

The Deputy knows perfectly well that if anything we do is contrary to the Constitution, it is null and void to that extent.

Mr. McGilligan

I know that as well as the Taoiseach, and I say that this phrase, that justice is to be administered in courts established by law by judges appointed in accordance with the Constitution, means nothing.

The Taoiseach

By the courts that are there to interpret the law.

Mr. McGilligan

Let me make my point without interruption. The Constitution says that justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution. I take up this Official Report and quote the Taoiseach: "We are bringing this matter here to the sovereign court of justice."

The Taoiseach

For the determination of rights between citizens.

Mr. McGilligan

Earlier, the Taoiseach said: "I say that we are here the court of equity in this matter".

The Taoiseach

And in all matters of rights.

Mr. McGilligan

If we are the court of equity and if we are the sovereign court what is the meaning of this paragraph which says that justice is to be administered in courts——

The Taoiseach

Of law.

Mr. McGilligan

Oh, let me finish.

The Taoiseach

The Deputy is a good hand at interrupting.

Mr. McGilligan

I will not call the Taoiseach a cub, in any event.

The Taoiseach

I did not call anybody a cub.

Mr. McGilligan

You did. It is on record.

The Taoiseach

There is nobody who can say he heard me. Did the Deputy hear me?

Mr. McGilligan

And now that the Taoiseach has lost his temper, I move to report progress.

The Taoiseach

Will anybody stand up and say he heard me say it?

Progress reported.

The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 30th April, 1947.