We have now come to the Final Stage of this Bill, and before we proceed to discuss the Bill on this stage I would like to make clear the position of the Chair as regards the introduction into the debate of the personality and office of the Chief Justice as Chief Justice. As Deputies are aware, there has been a rule for over 25 years past, based constitutionally, that the office and personality of a judge or his decision in court are not in order in debate in the House. The inclusion of the Chief Justice as a member of the board under Section 4 of the Bill does, as the Chair stated on an earlier stage, leave that section open to criticism by members who take objection to the course proposed in the section. In other words, the Chief Justice as chairman of the board will not be acting in his judicial capacity. That objection may be legitimately voiced by those who feel it necessary to adopt that course, but I must emphasise, following the proceedings on Second Stage and Committee Stage of the Bill, that the office of Chief Justice cannot be made the subject matter of debate, neither can there be reflections on him personally nor can his motives be canvassed.
Committee on Finance. - Sinn Féin Funds Bill, 1947—Final Stage.
On this, the Final Stage of this Bill, I wish to enter a cast, brief, but I hope emphatic protest against the infringement of principle in this Bill, against the dangerous doctrines that have been used in the course of the debate to justify its passage and the very dangerous precedent that the Bill creates. I have no intention of referring in any way to any of the details of the measure or to any part of the machinery which is in the Bill to carry out the central purpose of the Bill.
An action was started by private individuals in court claiming that they were entitled to certain moneys in court. Those moneys had been lodged in court a considerable number of years ago because it was not possible then to ascertain who was the original owner of those moneys. The lodgment in court by trustees of trust moneys is permissible in cases of that kind where trustees have difficulty in administering the funds subject to their trust or where they are unable to ascertain who are the real beneficiaries of the trust funds. That was the position in the case. That was the position of the trustees when the money was lodged in court. For many years no person came forward claiming to be entitled to any interest or any share in those funds and no action was taken in court to establish any claim to those funds or to get the direction of the court as to their future use. Some few years ago certain private individuals, citizens of this State, rightly or wrongly conceived the notion that they had a claim to those funds. They adopted the recognised legal procedure to have their claims adjudicated upon by the courts established in accordance with the Constitution and with the law of this State. The existing provisions of the existing Constitution provided by Article 34 that justice should be administered in the public courts established by law. In the exercise of their rights as citizens of this State they had resort to the Irish courts established by an Irish Parliament administering Irish law. Their action proceeded, as I understand, with no great expedition, for a variety of reasons but, just as apparently those plaintiffs in that proceeding were in a position at a not very distant date to have their claims adjudicated upon, this House was called upon to interfere and to exercise its right of passing legislation dealing with the matter.
Stripped of all the discussions, perhaps of the irrelevancies, that have crept into the debates upon this Bill, that is the fundamental matter to which I wish to direct attention. This is an effort by the Parliament to take away from a private individual his right to resort to the court at a time when he is pursuing that right which is vested in him as a citizen and before the courts established by this Parliament have adjudicated upon or are given a chance of adjudicating upon his claims. That is what I say is the principle which is infringed by this Bill.
In the course of the discussion on Committee Stage of this Bill I suggested that possibly a case could be made that a problem existed as to the future dealings with the funds in court. The proper time to have dealt with that was before any individual took any step to have his claim adjudicated upon in court. Possibly some discussions took place amongst parties who had some interest in these funds or in the organisation whose funds they were, prior to the institution of the proceedings. The vital fact is that no step was taken to obtain Parliamentary sanction for any dealings with those funds until long after an action had been started in our courts and that this Bill only came into this House at a moment when the plaintiffs in the suit were endeavouring to have their action heard. To interfere in that set of facts is, in my submission, Sir, a very dangerous precedent. To justify this wholly unprecedented proceeding a variety of arguments were put forward on behalf of the Government. A new body of equity was appealed to and ultimately we were told that the Oireachtas was regarded as something in the nature of a High Court of Equity or a High Court of Justice, exercising some indeterminate jurisdiction, quite unknown, without precedent, without rule, without anything to refer to except what a particular Government might conceive to be the equity of a particular set of facts in a particular period of time. The appeal to such a nebulous jurisdiction in this House is, again, a very dangerous doctrine to promulgate. I say that it is dangerous, not appealing to the existing circumstances with which we are confronted at present in the country or in this Dáil, but taking the long view and looking forward into the history of this country in the future. We do not know what particular Government, what particular majority may find themselves wishing to do a particular action, through legislative sanction, which may cause injustice to particular individuals in the future, the justification for which will be in this nebulous and indeterminate jurisdiction that the Dáil is supposed to have for a body of equity that exists in the minds of particular individuals from time to time, finding its rules in no law or no legal code—which can be found in no books, which can be ascertained with no certainty but which can be given a high-sounding title for the justification of a piece of gross injustice. I think that anybody who looks at this matter impartially and in a detached frame of mind must realise that we are setting a very dangerous precedent and appealing for its justification to very dangerous doctrines, ill-founded and, in my submission, ill-conceived.
It is for that reason that I speak on this Fifth and Final Stage of the Bill. I have no interest in the action. little interest in how the funds are to be dealt with under this Bill, but I feel that the public interest which has also been called into aid—I think for the first time, I mentioned it in the first speech I made on Section 10 of the Committee Stage of this Bill— requires that this precedent should not be proceeded with. I have little hope that the Prime Minister, who is in charge of this Bill and who has sponsored it throughout by appeals to this indeterminate body of equity and to the jurisdiction of this House as the High Court of Parliament, will accede to this final request made by me and, I think, by my colleagues entirely as a matter of principle. I think that if this case were even now allowed to continue its allotted course, before the autumn session of this Parliament the House would be in a better position to see what ought to be done in connection with the matter. I do not know whether or not these plaintiffs are entitled to succeed or will succeed in their action, but I think we are not entitled to say that they will not succeed, that rather we are entitled to say that if the courts do give a decision in their favour that decision must be such, of necessity, from the facts as we know them now, as to justify legislative interference to set them aside. That is what we are doing in this Bill. I think that is an evil thing to do. It is a bad precedent to set. We have been used, in the course of our studies of the history of law and equity, to hear reference to the so-called "Mother of Parliaments" as being the High Court of Justice.
The British legislature, for historical reasons, can claim to be a High Court of Justice but, with their instinct for doing the proper thing in a proper way, they have their own methods which find their highest exposition in the judicial functions of the judicial members of the House of Lords. We have no such history here in this country and I think it is a very bad precedent to try to set up this Dáil, this forum of political Parties, elected on political programmes, to try to put it into the heads of these people that they have some sort of depository of justice and some form of deposit of faith which will enable them to determine what is justice and equity in a particular instance and in a better fashion than the judges who are appointed, after years of training and experience, to administer justice in the courts of this country. It is utter nonsense to say that this is a court of equity or that it has any possible qualification to deal with matters of morals, of fundamental principles of justice. These, Sir, are the outlines merely of the objections that I have to this Bill. I oppose it on principle because I think it enshrines a principle and creates a very dangerous precedent.
I follow very much along the lines of my colleagues who has just spoken. In order to have the matter brought into a narrow compass for those who may read, I would like, at this Fifth Stage of this calamitous measure, to refer to two or three quotations from what I heard the Taoiseach saying here and which certainly indicate a new conception of the whole system of the courts of law, of justice and of equity in this country. I want to stress, before I read, that I had expected some case might be made in connection with this measure on account of the very peculiar nature of the moneys which are at issue in the suit that is before the courts, that some better effort might have been made to prevent this action from having a general effect later: that some effort might have been made to show why this was a singular situation and one whose very circumstances, as adopted in this House, should never have led to the point of precedent that Deputy Costello fears.
I want to stress that the words I shall quote here are used generally by the Taoiseach. His phrases do not affect this Bill, and this Bill only. His phrases were not carefully considered so as to have application only in a limited way and only to this particular measure. The phrases that he used were of general import and can have much wider application than the measure we are discussing. On the 24th April, in the Dáil, as reported in column 1444 of the Official Reports, he said:—
"When we bring this matter here we are bringing it to the sovereign court of justice, the court which can decide upon the substantial justice what is proposed..."
As reported in the Official Reports two columns earlier he said:—
"I say that we are here"—that is Dáil Éireann—"a court of equity in this matter, the fundamental court of equity, and that what I am striving for here is that substantial justice should be done as against formal justice."
Then, again, as reported in column 1444, he said:—
"...is to be judged by its fundamental justice, that is, its justice from the point of view of the well being of the people as a whole, the common good."
This is then the supreme court of justice and, lest there should be a difference between justice and equity, this is the supreme court of equity, and lest there should be something over and above justice and equity in the way of fundamental right, this is the court where fundamental right will be declared in accordance with our notion of the common good.
I take up my Constitution at that point to see how all that fits in with what we, the people of Éire, gave ourselves in this Constitution, and I find an Article which deals with the courts and which says:—
"Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution."
Then the courts' jurisdiction is set out. You are to have courts of first instance, including 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". We have Articles dealing with the criminal courts which give every man a right to trial by jury. Of course, we weaken by saying that special courts can be set up, and we know that under earlier Article we can have administrative tribunals, and neither the special courts nor the administrative tribunals may be presided over by judges appointed under this Constitution.
I ask where is the power in that to establish this legislative body, whose function under this Constitution is declared to be distinct from that of the courts, as a court. I am reminded of a phrase used in England in connection with a piece of statute law when a court giving judgment said that "it seemed as if in constructing an elaborate fortification the Legislature had provided what appears to be an easy method of undermining its foundations". Are we undermining the foundations, by this easy method of the Sinn Féin Funds Bill, of the courts that we so solemnly established in this document? What are we putting in their place? At the end of a debate in which the Taoiseach himself derided the courts which he established and partly filled by saying that they might give an unreal decision, that they were tied to a narrow legalism and that they could not, for some reason, understand the background of fact associated with this matter, we find that he is driven to claim that if anybody wants to question the constitutionality of this measure he will go where? To the courts, which are held up to scorn here as a body that might give a narrow legalistic determination, might find something that was unreal and which are, apparently, incompetent to apprebend the associated body of facts upon which their decision might rest.
These words used by the Taoiseach are general. It is not that we, in relation to the Sinn Féin Funds Bill are a sovereign court of justice, or a court of equity, or the place where fundamental rights will be declared, but generally. That is the position we have taken up. In the old days one knew of the pagan concept, that what pleased the Prince had the force of law. Have we got to the point now when the Prince has established himself and is projecting his view of the law in this Assembly and through his Party as being something which will have the force of law irrespective of what the Constitution may say or the courts may decide? We know that in recent years there was another distoration of law, the Nazi idea of law which tried to propound the theory that law was an emanation of the folk spirit, the spirit of race, and that there was one man who could declare what that spirit was. That was put through a completely dominated Reichstag. Are we near that position now? Is that what is being claimed?
At this stage we find ourselves three or four days from the introduction in England of a piece of legislation called a Bill to Preserve the Rights of Subjects. There they set out, fearing they have gone too far along the path along which we have gone much further, to take certain precautions and to give certain safeguards to prevent, say, a situation that sometimes can arise in England where a point of law may not be raised in court when a Minister is plaintiff, a position in law in England which has given a shorter time for the limitation of actions than there is in connection with a private citizen, and a variety of small points; everything that goes, as one man said, to strengthen the enormous leverage that the Crown has against the private citizen when he comes into court.
We have all these statutes that they object to. We have done away with the Crown in name, but we have Crown positions and we have Crown rights as against citizens and the enormous leverage is there. In England what they object to is the leverage exercised in court and determined by judges appointed to be in such a position that they can be independent, ask to be independent, and expect to be independent. We have this easy, roundabout fashion of by-passing the Constitution. We keep the courts, but we say to the courts: "Not in this case will you give any determination. You might be constrained to decide on narrow legalistic grounds. You might not understand the background of fact. You might be brought to an unreal decision and, therefore, we do now what we mean hereafter to do many times: we take from you the right to decide this case."
We have gone very far in this country already past what we call the fundamental rights of the citizens. We have got past this constitutional position with a piece of legislation which enables the Minister to declare it his opinion that a named person should go to jail and that person goes to jail and stays in jail until such time as the Minister changes his opinion, and no court can decide on the legality of that detention. We have the same system that rules in what we used to know as the privacy of the house, and the liberty of the subject must be exactly the same if any question arises in connection with a breach of the privacy of the house. If this legislative body passes legislation saying somebody's house is to be battered down to effect an entry, that is law.
Are we to debate all these matters?
I am putting this in a setting and I do not intend to refer to it to such an extent that will cause the Taoiseach too much disquiet.
I just wondered whether the Deputy was in order in referring to those matters.
We have another Article in this Constitution about private rights, phrased in such terms that the courts had to declare that the references to social justice were more political shibboleths, devoid of all legal meaning. The courts that said those things were put into the position of being independent and they are expected to be independent. Now we have the clear-cut situation explained to us by the Taoiseach, and I am generalising his words—that in any case in which this legislative body, by a majority, thinks the public may demand it, this House can interfere in a pending case and deprive those applying for justice and law before the courts of what they are seeking in contest to get from the courts.
I assume, from the Taoiseach's interjection when we discussed this from a constitutional point of view, that he will agree with what I am going to say, that if he brings in legislation, putting it in this way, that whenever it appeared to the Taoiseach to be conducive to the public good that he should, by notice served on the court, get the court to dismiss a pending action, and then have that action brought in here for the determination of the Taoiseach, with his Party strength, he would expect and claim that that Bill would be passed by the courts as constitutional. I think that is his claim. If that is his claim, and I suggest it cannot be anything but that, what is the value of this document, with its whole elaborate fortification of the courts and an independent judiciary, and the statement that the courts will have full jurisdication over every matter, civil and criminal, fact and law?
The British are now fortifying their code with a new piece of legislation to safeguard the rights of subjects. They have no constitutional guarantees. It is said they depend upon the majority of a particular generation for what they do, and yet they are much more jealous of an individual's rights than we are here, with all our fortification of the Constitution. They have a tradition in these matters. Unfortunately, we have not. One can go back and read through their history and find the long conflict there was when the people were trying to get power from a king. Eventually, they carried forward the same conflict, so that the people struggled, not against a prince or a king, but against an executive, and they kept pressing and pressing and worked out the code of justice they now have, founded upon the Bill of Rights.
This Sinn Féin Funds Bill and all that comes from it, with its repercussions on the Constitution, now means that we are passing a Bill of no rights, except such rights as the Taoiseach and the majority Party will allow to any person. In this we are encroaching on the old fundamental rights and I often think, when I hear debates on constitutional matters here, that there is very little regard for the history and the tradition which attach to these things. I hear people using phrases as if we got our rights from 1916, 1921 or a later date. Nobody appears to appreciate the long history that there is behind all this and the terrific struggle there was to achieve all these rights and the fact that when people were striving for them, they were striving for something that was sacred to them, that came to them from an old Christian and an old classical and pagan tradition.
We are going to have none of that. We have the simple case that we who are elected as a legislative body under a Constitution which segregates our duties and rights from that of the courts are now suddenly assuming the status and powers of judges. We are, to quote again, the supreme court of justice in this country, we are the supreme court of equity in this country. We are even above all that. If anybody wants fundamental rights, this is the court where these rights will be got, and they will get these rights on our consideration of the common good.
And not merely are all the old things rooted in tradition gone if this succeeds, but even the extra fortification given to history of having an institution of law and justice built up in a way that is common all over the world. The plan that seemed best to the best minds of men all over the world over many centuries was that it was a great thing to have, side by side with your legislative body and your Executive, another body, a body of men chosen for their judgment as well as for their knowledge of law, people who, when chosen, were given every possible fortification that persons would require to put them into an independent position and there was then demanded of them that they be independent. Our Constitution demands all that, and, after that we relied on their good sense and judgment and experience; but independence was the key-note.
Is this House marked by independence? Was it not because nobody could believe in the complete independence, in the face of a particular set of facts, of a legislative body elected on a Party system, that this scheme of flanking the legislative body with a body of judges grew up? Now we abolish all that. We are going backwards through history; we are going back beyond the Bill of Rights. We are back unconsciously at the stage which men thought to be so bad that they fought for years to establish the system of institutions we are now scrapping.
I think Deputy Costello is right in saying that this is an evil precedent, a frightening precedent, and it is only right to say, in conclusion, that the motive that has led to this is as mean as the action to which it has led. Because one man cannot have his history brought out before the people on oath in court when he would appear, as he would have to, as a witness, and to hide the shame that might lie on him, we wreek the foundations, constitutionally, of the State. It was fitting that part of the debate should have been garnished with four words of Greek from a man who certainly knows no Greek and who most decidedly knows nothing of the Greek system, the Greek tradition, the whole view that the Greeks had of life which made them among the first to give us what eventually led on to the building of courts of justice side by side with the legislative body. We can take the four words of Greek——
Two.
Two words, so—I did not know the knowledge was so confined. Take the two words of Greek and garnish all this unsavoury dish with them, but the reality is still there, that we are creating a precedent and it is done deliberately by the Taoiseach in words which have no particular meaning attached to this measure but of the most general import and they will hereafter be quoted as a precedent.
I think I should start by congratulating our two legal friends on the ability with which they have tried to confuse the issue. This Bill was brought in for a very simple object, and it provides how that object is to be secured. There was placed in court some 23 years ago a sum of money which belonged to a great national organisation. It was placed in court because of a great national division which broke up that national organisation into two parts. Two treasurers, who happened to go one way, put the moneys in court. The moneys have been there for 23 years and nobody has claimed them during the whole of that time. The question of their disposal did not arise until the second of the treasurers had died and the legal personal representative of that last surviving treasurer had asked that something be done about them. It has been suggested in all this debate that we have stepped in to interfere with court action. The truth is the reverse—that this matter was brought to the court only when the question of legislative action for the disposal of these moneys was known to be about to take place. These moneys have to be disposed of or left there permanently. It seems to me right and proper that this House, as representing in the largest and broadest way the nation, whose interests were being served by that national organisation to which the moneys were subscribed, should dispose of these moneys.
Some of the lawyers who talked during the debate seem to suggest that the courts could have brought in a method of settling them, on the cy prés doctrine. They know full well, as lawyers, that that is not so. They know full well that that doctrine has a very restricted application to charitable objects and that the courts could not in these circumstances settle a scheme on that basis. Though they know that and pretend to give us legal opinions here for our guidance, they conceal it and pretend the opposite. The courts could not dispose of these funds; therefore, it was natural that this body should dispose of them. It was only when we were prepared to come in here with legislation to dispose of them that the courts were resorted to.
When this resort to the courts took place, the Government and I had to decide what steps we were going to take. We stepped aside in the hope that there might be a quick determination of this matter. We waited for a number of years until finally the Attorney-General took steps to compel the action to be brought to hearing. Under that compulsion, a date was fixed, but no sooner was the date fixed than another action began. When I asked what expenses were likely to have been incurred up to then, I was shocked when I was told that probably before the case came to trial at all, a sum of £7,000 or £8,000 would have been spent. I naturally asked the question: "How much will it take if this case goes to court?" It was anticipated, this being a case covering a long period of years, that another £7,000 or £8,000 would have to be spent, as it was expected that the case would last for three weeks at least. Then I was informed that it was very likely that the case would go to appeal and that, if it went to appeal, another sum of practically the same amount would be spent; so that the estimate that was given to me was that about £20,000 of the total of £24,000 in court was going to be spent in legal expenses.
I was told that we were going to have two seniors and a junior on the side of the plaintiffs, that the Attorney-General was going to have two seniors and a junior and that there were going to be two seniors and a junior on behalf of the representative of the last surviving treasurer. I asked myself: Would we be justified in allowing all this money to be spent, so that in the end nobody was going to benefit by these national funds except those who would benefit through law costs?
I felt that it would be a scandal that money contributed under the circumstances in which this fund was contributed should go in that way. Perhaps I should have seen that earlier and at the very beginning, when this action was proposed, that I should have gone ahead with the legislation. One of the reasons was—I am not ignoring it— that retroactive legislation is not desirable if it can be avoided. I was anxious, therefore, to allow the matter to come to a head and get it finished with, rather than bring in legislation; but when I saw that the result was going to be that, no matter which side got the decision, in the end all that would be left would be a trifling sum of money, then my belief was that the fund should be used for better purposes than being spent on law charges.
I had for a long period of years endeavoured to get that money applied for some common purpose, a purpose that would be agreed to by all the various parts into which the organisation had split up. I failed in that. As is well known, I tried to get agreement so that the money would be used for the advancement of the language, because that was a common purpose. It was a purpose that was common both to the original organisation and to the various sections into which that organisation had, since 1922, become split up. The revival of the language was, as I said, a common purpose, and I had done my best to get agreement so that the money would be used for that purpose, but when the representative of the last surviving treasurer came along, the suggestion was to use it somewhat in the same way as is provided here in this Bill. I said I did not care for that very much, because I was afraid of the administrative costs that would be involved. On the particular matter in which it was proposed to dispose of the funds, I felt that the administrative charges would be too high, but as there seemed to be a measure of agreement obtainable on that method amongst the survivors of the controlling body of the original organisation, from 1919 to 1922, I accepted it as being very much better than wasting the money in legal charges. Now, that is the history of the matter.
So far as the suitability of this body to dispose of the funds is concerned, I think there can be no doubt. These were national funds in the broadest sense, given to probably the broadest national organisation which could be shown in any country. That organisation was broken in two in 1922, and, in 1923, I, as one of the principal officers on one side, did my utmost to restore that organisation, to reorganise it. I did my utmost to keep it on the lines on which it had been, to keep the constitution the same, and I did everything within my power to maintain the continuity. Would that be sufficient to establish the right of the organisation of which I was president after 1922 or 1923 to the funds? I do not know. I do not know on what legal principles, on what basis that might be decided in court, but my evidence in a court of law would be that I did that, and to what extent I succeeded the court would have to determine.
Deputy McGilligan suggests that I would be afraid to stand as a witness in court because I would be parading myself, he said, as having been President of Sinn Féin from 1922 to 1926. I was president of that organisation, of the reorganised organisation, from 1922 to 1926. That would be my evidence. I would not have to go to court to try to make a thesis on one side or another. All I would have to do in a court is to give the truth in so far as I knew it and to give my evidence as I knew it. If the court decided one way or the other, that was no longer my business, once it had gone to the court, and, were I a witness in court. I would say there what I am saying here, that—a fact which is known to everybody—I was President of Sinn Féin from 1922 to 1926. I did not parade myself as such but was president of the organisation that called itself Sinn Féin. Whether there was a continuity, I could not say what the court would hold, but I know that I did my utmost to maintain the continuity.
And claimed it up to 1929.
I did my utmost to maintain it and everything that could be done to maintain it, I did. I make no apology whatsoever for it. I went before the Irish people at elections as such.
I am only stating that in this House the Taoiseach claimed it up to 1929.
The Deputy need not interrupt. I have said that I did everything I could. In that organisation there was another break in 1926. As president of that organisation— remember that it had already been reorganised in 1917 and that the Sinn Féin organisation from 1917 to 1922 was a very different organisation from the Sinn Féin organisation from 1905 to 1917, although it had the same name, it was very different—I tried, in 1925 or 1926, to get Sinn Féin to adopt a policy which I believed would enable it to succeed in its purpose, and, when we did not get a majority at the particular convention, I left. The result has been that, over a number of years, the organisation has dwindled to the position which I called insignificant, and the question is: is that body to which these funds were never subscribed—they were subscribed to the great national organisation—this small dwindling body, to claim to-morrow that it is entitled to get these funds? In the arguments here, it was suggested that we are taking the funds away from them. They never had them.
Who had them?
They were in the courts, having been put there by the treasurers in 1924, the treasurers who had gone one way.
Who had left Sinn Féin.
Who had gone one way.
Who had left Sinn Féin.
That is a question on which different people might have different opinions. So far as I am concerned, that was the position—I took it that they had left it. We tried to reorganise and build up the organisation. But suppose this small body got these funds to-morrow—I do not know what numbers they have, but if there were only a dozen people calling themselves Sinn Féin—are we going to say that these dozen people are entitled to get these moneys subscribed to a great national organisation, and that, after getting them, they could, by changing their constitution, apply them to any purpose they pleased? I think that in ordinary simple justice the thing would be absurd. The fact is that everybody who subscribed to this fund, every subscriber in the country, has a certain interest in these moneys, and if it were possible to give back these moneys to the subscribers, it would, in my opinion, be the course that would be adopted by the courts, but, of course, that is not possible. These are the fundamental merits of the case as I see them.
I said—and I believe that, in saying it, I was only saying in a different form what the Leader of the Opposition said —that this was a matter which was not the type of matter which should have gone to the courts at all. The Leader of the Opposition was inclined to blame me at the start for not taking action more quickly before any expenses had been incurred. That was the way I expected him to approach it. It was the realistic and honest way of approaching it, but the lawyers took a hand and turned the whole debate into a different channel.
Nonsense.
It is there for the people to see. It has been suggested here that we are doing something monstrous, something unprecedented, that we are cutting away the foundations of the State by this action. One would think that legislation of this kind had never been passed in any Parliament in the world, but the fact is that legislation of this kind has been passed in every Parliament—whether it is a Parliament like ours with a written Constitution, a Parliament like that of Great Britain with no written Constitution or a Parliament like that of the United States with a written Constitution.
And yet the Taoiseach says that this is a unique thing, as far as this State is concerned, at Column 1441 of the Official Reports.
Exactly. What is unique? That you have a sum of money left for 23 years in court which was given originally to a great national organisation. I said it was unique because I do not think it will happen in our lifetime that anything of this kind will arise again, or is likely to happen very often in the lifetime of the State. It is unique, and, because it is unique, the danger of legislation being used as a precedent in that connection is most unlikely. That was the sense in which I used the word "unique". Undoubtedly, it is unique. It is something which has happened in this State once and is not likely to happen again.
Now the argument is——
I did not interrupt when other Deputies were speaking. It is suggested that this type of legislation is unprecedented. That is untrue and known to be untrue by every lawyer in the House and by everybody who cared to read the debates, either here or in the Seanad, when the first case of retroactive legislation was being introduced. The very same arguments used by the Opposition against this Bill were used by the Opposition of that day, both here and in the Seanad, against the Land Bill of 1926 relating to the Lynam v. Butler case.
Against the House of Lords.
If the Deputy will wait, I will deal with these things. The principle involved from the point of view of the Opposition—the case they made—was that here was a case pending, a case which was being appealed to another court; they said: "If you do not want it to go to this other court, bring in a change of the Constitution. This is a case in which an individual is concerned which is passing from one set of courts to another and you are coming in now to interfere with the courts." It was said that it was monstrous and most unprecedented, that it was going to set a precedent for all sorts of interference with the courts in future, that it interfered with the independence of the courts and so on. That particular type of argument had to be met, as well as the argument that it was necessary, in the national interest, to prevent its going to the Judicial Committee of the Privy Council. What were the answers? The same answers, if anybody cares to look them up, that I made here. Those were the answers given to the argument that it was unprecedented to interfere with the independence of the judiciary and so on. Cases by the dozen could be quoted both from England and the United States proving that retroactive legislation was not merely possible but was necessary in the public interest in those countries on a number of occasions. I shall come to some individual cases later. Let us keep to general principles for the moment
My words have been parsed—words I spoke here impromptu. They have been taken from their context and it has been sought to give them a significance other than the obvious significance which would be given them by anybody who took them in the context of the case I was making. I said that, in every Act of ours, the question of justice is involved. We make the laws. If we make unjust laws, then the courts have to carry out those unjust laws. The courts have no option in the matter. They have to maintain the Constitution and the laws as they find them. It is we, sitting as the representatives of the people, who make the laws.
In so far as we are making laws, we are determining rights as amongst classes and individuals in the State. There is scarcely a law we pass which does not, somehow, affect existing rights. Therefore, if we act unjustly, if we do not act from the point of view of the public good, we shall be doing damage. We are, undoubtedly, inasmuch as we are making the laws, a supreme court of justice—in that sense. Whatever laws we make, the courts have to carry out. It is pretended here that the courts can, somehow, as against the Legislature, defend citizens. That is a mistaken idea. In England, where they have no Constitution determining the rights of citizens, Parliament is sovereign and Parliament can pass a law interfering with the rights of any individual or any class of individual at any time. There is no question whatever of any barrier to that supreme power. Except for the Constitution here, there is no legal barrier to the exercise of rights in such a way as will compel the courts to do exactly what Parliament wants them to do. The Oireachtas makes the law. The courts have simply to interpret the law as it is given them and carry it out. If, at any time, the courts interpret a law in a way contrary to the will of Parliament, Parliament can change that law. That should be obvious to everybody. It is nonsense to think that the courts can stand up in opposition to Parliament in regard to general rights.
In our Constitution, we have provided for the protection of the citizen; in so far as it was possible to preserve individual rights, as against the rights of the community as a whole or the Executive or Parliament, without making the whole system impossible, that was done in the Constitution. The aim in that Constitution was to preserve fundamental rights and prevent any majority in Parliament, or any Executive influencing that majority, from interfering with certain fundamental rights. But the Constitution had to be a practical document. It was not sufficient to give expression to general ideas; it had to be a workable document. It had to see this State through dangerous periods such as that through which we have just passed. It had to save the State against abuses of liberty, and it will be admitted that there can be abuses of liberty. All that had to be provided in it.
Save in so far as it may be later changed by the Irish people, the Constitution is over Parliament, and the power the Supreme Court has over Parliament is to see that Parliament does not transgress or violate that Constitution. That is the ultimate safeguard in so far as it is possible to have safeguards for the individual. It has been suggested that this Bill is a violation of the Constitution. Nobody has attempted to get down to bedrock and point out exactly where and how it violates the Constitution. We have had vague phrases, but nobody has attempted to show in what respect the Bill which you are now asked to pass violates the Constitution. The advice given to me by people who have no interest whatever in misleading me is that this Bill is constitutional. I am satisfied with that. If anybody has an action in which that point is involved, he can bring it to the courts. If and when that question is tested, if this Bill is found to be in any respect whatsoever contrary to the Constitution by the determining authority— the Supreme Court—then, to that extent, what we do is null and void. Let us have an end to this suggestion that we are violating the Constitution. We cannot do it.
They can take it before the Chief Justice who is mentioned in the Bill.
That is a mean suggestion.
It is true.
This question is being brought in again, although I did not expect to have to deal with it to-day. If I am to deal with it, then I say that members of this House ought to have some respect for the institutions they set up and not be suggesting these things. Is it suggested that, because the Chief Justice happens to be nominated a member of a board which can only be established and which can only sit if this Bill is passed, it would unfit him to discuss the constitutionality of this Bill?
Having seen the Bill.
That is a mean, dirty observation—an observation unworthy of the House.
It is true. It came from the Taoiseach.
The point is that it is a misrepresentation of anything I said. Of course, the Chief Justice had to be consulted in the sense of telling him his name was going to be put in and ascertaining whether he would act in that capacity.
And he saw the Bill.
Even so. This is the most disgraceful thing that has ever happened in this House.
It is. That is what we are trying to point out.
Are we going to have this brought in now, which was ruled out by the Chair as not a matter for discussion? Are we going to have it?
The Taoiseach introduced it.
The Taoiseach did not introduce it.
Yes.
No, I did not.
On a point of order, how does Deputy Mulcahy's interjection agree with the ruling the Ceann Comhairle gave earlier this evening with regard to the introduction of any comments on the Chief Justice? How is Deputy Mulcahy's interjection in order?
On a general principle, any interruptions are out of order.
The Ceann Comhairle gave a special ruling this evening, which he read out. You were not here at the time.
It does not matter that I was not here. What the Ceann Comhairle rules decides for the Chair.
Are any queries to the Taoiseach in order in the light of the ruling given by the Ceann Comhairle?
Interruptions are out of order in general, apart from the particular matter raised in the interruption. I hope the debate can be concluded without further interruptions.
The argument about our doing something which is unconstitutional is, on the face of it, absurd. We cannot do anything effective which is unconstitutional. Anything that we do, if it is unconstitutional, is to that extent null and void; and if anybody claims that the advice which is given to me, which I accept, is unsound, then any person aggrieved can have the matter tested. Nobody has pointed to any particular Article of the Constitution, but there has been a general suggestion that there in something in this which is against the whole spirit of the Constitution. Well, in the case of an American decision which was adopted and approved here in the State (Ryan) v. Lennon, 1935 (Irish Reports, 170, p. 236) the words of that decision were:
"Courts cannot nullify an Act of the State Legislature on the vague ground that they think it opposed to a general spirit supposed to pervade or underlie the Constitution where neither the terms nor the implications of the instrument disclose any such restriction."
In other words, the courts naturally held that if anything in the Constitution is to be interpreted as governing or fettering the sovereign right of Parliament it must be specific and precise. Britain has no written Constitution to fetter the power of the Legislature at any particular time to take such action as it deems wise in the public interest. Therefore, the constitutional side of the argument has no weight whatever. All the eloquence of Deputy McGilligan about the rights of individuals and the struggle that there was in Great Britain against Parliament are of no avail. Those rights are enshrined, in so far as that document is effective, in the will of Parliament. It would be very foolish for our people to think that, if they at any particular time elect a majority of their representatives with any particular point of view, they are not in a position to give effect to those views, on the one condition only of their being subject to the Constitution. Therefore, when elections take place and when the people are electing their representatives, they should remember that they are giving them a tremendous power for the good or ill of the community as a whole.
They will know it for the future.
They have always known it. They are no fools and will not be fools any more in the future than in the past.
I have been asked if I could give some examples of legislation of this character. The plea has been made that we can have legislation retroactive, but that there is no case which just comes in and interferes with a case in court. Of course, that was not true, and anyone who tried to understand the matter at all knew it was not true. Within our own experience here, without going to any particular case, scarcely a Deputy would not have heard of laws being passed in which it was stated something like this: "The law shall be such, notwithstanding anything else and shall always be deemed to have been such." The first case is that of the Land Act of 1926, which dealt with the Lynam v. Butler case. Leave had been given by the Judicial Committee of the Privy Council to appeal. It was regarded that it would be wrong national policy to allow that to happen, and, in the public interest, the State came along and passed an Act which deprived this litigant, who was looking for a change in the decision, of any chance of getting any change in the decision. The reason for that was a good reason. Even though the Constitution at the time was interpreted by some as giving litigants the right to bring in that outside court, it was right and proper in the national interest to say that that should not happen. But the fact was that it did come in, in the middle of a legal process, and say that one of the parties was not going to be allowed to be heard —or, at least, be heard with any effect.
I have another case. Some of these cases are more to the point than others. This one is about a deputy-registrar in Bankruptcy in Cork. The point was that he had been acting and doing certain things, and it was found that only the registrar could do those things. A law was passed stating that any act done in the exercise of powers which could have been lawfully delegated to the registrar was deemed to be and always to have been as valid and as effectual, when done by the deputy-registrar, as if it had been done by the registrar himself. That was a case of a decision which had been taken by the court and the Legislature came along and set it aside. As far as interference with the courts is concerned, which is the greater interference—to come in before a thing is done or to wait until it is done and then say: "No matter what the decision was, we, as a sovereign authority, say the law shall be otherwise"? It was not a matter of very grave consequence, I admit, but the principle of setting the law otherwise than the court stated it to be is contained in it.
I have another case, that of the Copyright (Preservation) Act of 1929. That was a case in which the Performing Rights Society took action against the Bray Urban Council for contravening copyright. What was the result? An Act was passed declaring retrospectively, notwithstanding the decision of the court that there was no copyright, the subsistence in Saorstát Éireann from the 5th December, 1921, of every copyright of the kind which had been declared by the Supreme Court not to be subsisting.
The Supreme Court said that no such right subsisted. The State came along and made a law that such a right did subsist. It then took certain steps that flowed from that, because although the right subsisted it did not want to have the Bray Council mulcted in charges for breaking a copyright. It deprived the defendants of the benefit of the decision in their favour that they had not infringed any copyright— it was found that they had not—but the Legislature said: "you have", at the same time protecting them and others to the extent of precluding any right to damages or otherwise, in respect of the infringement before the passing of the Act. Incidentally, I might mention that that case went before the Judicial Committee of the British Privy Council, which held that the Act precluded them from doing anything other than discharging the order of the Supreme Court as to costs. There was a case where the Supreme Court said that there was no copyright, and where the Legislature came along and said that there was, The Legislature was even able to be inconsistent, because, although it said that a copyright existed, it also said that still there were to be no damages given for the infringement of it.
I have another case here which relates to the Finance Act of 1929. At that time there was an income-tax case pending and it was understood that there was a question going to be raised with reference to the power of removing documents. Section 30 of this Finance Act of 1929 declared that a power to inspect and take copies of documents conferred by Section 26 of the Finance Act, 1926, included and had always included power to remove all or any such documents. Now, that was a case in which it was understood by the State that the vital point would be whether the State could or could not remove documents. The State, in protecting the public interest, took good care to see that it had that power, and, of course, once the Legislature passed a law then the courts had to accept it.
I have here the Courts of Justice (No. 2) Act, 1931. This statute declared that a certain method of awarding costs in the Circuit Court and a certain principle of taxation in respect of such costs should be and be deemed always to have been valid. This had the effect of overruling the decision of the Supreme Court in the case of Quinn v. Stokes (1931), Irish Reports, 558. The Act, however, excluded from its operation any costs directed by the Supreme Court before the passing of the Act to be taxed on any particular principle appointed by that court in respect of those costs. There was another case where the State had no hesitation in coming in and saying that the law shall be and be deemed always to have been valid and in overruling the decision of the Supreme Court.
Then there was the Land Act of 1936. Section 13 of that Act extended retrospectively the power of the Land Commission to reduce standard purchase annuities under Section 38 of the Land Act of 1933 to cases of holdings subject to a judicial rent. Before that it was held that the section did not apply to those subject to a judicial rent. In the case of the Marquis of Lansdowne against the Land Commission (1936)— Irish Jurist Reports, 1—the Supreme Court had held that Section 38 of the Act of 1933 did not extend to such holdings. The statute of 1936 went on to provide that the extended power could be exercised in relation to a particular holding subject to a judicial rent, notwithstanding any order or decision to the contrary in respect of that particular holding made or given before the passing of the Act, if so made or given on the sole ground that such holding was subject to a judicial rent. This deprived the plaintiff in the particular case, as well as all others, of the benefit of the decision in his favour.
Another section of the Land Act of 1936 went further. Section 17 of that Act contained retrospective amendments of Section 28 of the Land Act, 1933, relating to warrants of the Land Commission for the levy by distress of arrears of annuities. It had the effect of nullifying the decision of the High Court in the case of Halpin against the Attorney-General (1936)—Irish Reports 226—and it contained a provision—I ask Deputies to listen to this—providing that any action or other proceeding pending at the passing of the Act in respect of anything done under Section 28 of the Land Act, 1933, should not be further prosecuted or proceeded with if and so far as it was grounded on all or any of the matters retrospectively set right by the provision in the Act of 1936.
At a later date, there was the case of the Accidental Fires Act, 1943. Most Deputies will probably remember this. There was a fire in Athlone which started in a factory and spread. It affected a number of houses and property adjoining. The Accidental Fires Act of 1715 did not cover the case of a factory, and, accordingly, the defendants were liable for damage caused by the spreading of a fire originating, even though accidentally, in their factory. The statute, in effect, extended the protection against the consequences of an accidental fire to a fire originating in any building. While it left the benefit of the decision in their favour to the plaintiffs in the particular case, it provided that any legal proceedings in connection with such fire instituted after 16th November, 1942—that was the date of an announcement on the subject—and pending at the passing of the Act should be discharged and made void, subject only to relief as to costs. This provision deprived a number of persons, damnified by the particular fire, of any remedy against the defendants—which they would have had if the decision had not been dealt with by statute.
These were not the only cases. They could be got by the dozen. When the Land Act of 1926 was before the Seanad cases that were then fresh in the public mind were referred to. One of them was the British War Charges (Validity) Act, 1925. What happened was that during the war the British Government had made an arrangement so that licences were given for the provision of certain goods on certain charges. They made these charges but it was found in the courts that they were doing something which was illegal. The putting on of those charges was illegal and, therefore, they could not recover them. What did the Legislature do? It declared that acts which had been found by the courts to be illegal should be legalised, and should be held always to have been legal. It said that those who should have paid those charges should now pay them, and that any cases before the court were to be dealt with on that basis.
There was another case, the case of McDonald v. Shand, which I think was referred to in the debate. The point there was that it was decided that the chargeability to income-tax in respect of bonuses was separate from the chargeability on the main income. Because the bonus was variable, it was held that it should not be taxed in accordance with the rules which had been adopted. Again, the Legislature did not hesitate to come in, and the reason that it came in at that time was to avoid a certain financial loss, because all the civil servants, the moment they found the bonus which they had been getting came under this heading and was not, like fixed income, subject to tax, they began to bring cases into the courts, and, of course, the Legislature stepped in and said: "Look here, we are not going to have any of that. No matter what the courts have said, we deem that it is right and just that this bonus should be dealt with in the same way as fixed income," and deprived all these people of their right of action, just as we here, by passing that Act of ours with regard to accidental fires, deprived every person whose property was burned as a result of the fire from the factory, although they had at the moment before that Act came in, a right of action, and some of them were taking action.
We deprived every one of these people of their right to go to the courts and to pursue that action. So too, the British Parliament did not hesitate to save the Treasury from the loss that it would have suffered if the cost-of-living bonus paid to the Civil Service were to escape income tax, and we followed the same example here. Precisely the same thing was done here in 1924, as was done in Great Britain, under our Finance Act of that year. I think I have given sufficient examples to show that, so far as this Bill is impugned as doing something extra-ordinary in legislation, there is no foundation for the imputation. We are doing what has been done time after time in other countries. I think I can say, as was said in the debate on the Bill, that was the first case that came before us, in 1926, that we will all admit that retroactive and retrospective legislation is a thing that ought not to be lightly begun or attempted. It is not desirable as a general rule that that should be done. It is quite a different thing to be told that it cannot be done, that we are doing something altogether unprecedented when we do it. The whole question in all these cases is simply this: Is it in the public interest that it should or should not be done? Is it in the particular case just that it should be done? Not that it cannot be done. If the arguments had gone on the line that it is not desirable in this case that we should do it or it will not be just to a particular party to do it, I could have no complaint or nobody could have any complaint, but I think we have very good ground to complain of the case put up by people on the opposite benches, who ought to be as jealous about the power of this Parliament as we are and who ought therefore not to try to cripple it. In such a situation they ought to stand up for the rights here given us by the people under the Constitution. That is the position. I think, with regard to that, that we have a right to legislate retrospectively and that it would be wrong in principle to attempt to deny it because not merely is it desirable in some cases but in other cases it may be absolutely necessary to have retroactive and retrospective legislation.
As regards the other question which I think can well be argued and which it is desirable to argue and to argue closely in any particular case—Is it justifiable or not that we should have retroactive or retrospective legislation; in the particular instance in which it is going to be done, is it just that it should be done, is it wise that it should be done?—I say in this case that it is just. The people who are claiming these funds did not claim them for 23 years. The people who are claiming them now, in my opinion, have no substantial right to them, whatever right they may be able to prove by any formal continuity. I believe these moneys belong in the broadest way to the Irish people and ought to be used for some purpose which is in accord with that view. Is it wise? I think it is. I think not merely is it just but it is wise. I think it is wise that we should save these moneys for some good purpose and not let them be frittered away in law charges.
Tá.
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Briscoe, Robert.
- Burke, Patrick (Co. Dublin).
- Butler, Bernard.
- Carter, Thomas.
- Childers, Erskine H.
- Colley, Harry.
- Corry, Martin J.
- Crowley, Honor Mary.
- De Valera, Eamon.
- De Valera, Vivion.
- Flynn, Stephen.
- Gorry, Patrick J.
- Harris, Thomas.
- Hilliard, Michael.
- Kennedy, Michael J.
- Kilroy, James.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick, J.
- Loughman, Frank.
- Lydon, Michael F.
- Lynch, James B.
- McCann, John.
- McCarthy, Seán.
- MacEntee, Seán.
- McGrath, Patrick.
- Moylan, Seán.
- O Briain, Donnchadh.
- O'Connor, John S.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- Rice, Bridget M.
- Ryan, Mary B.
- Ryan, Robert.
- Shanahan, Patrick.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Ua Donnchadha, Domhnall.
- Walsh, Laurence.
- Walsh, Richard.
Tellers:—Tá: Deputies Kissane and Kennedy; Níl: Deputies Doyle and Bennett.
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Beirne, John.Bennett, George C.Blowick, Joseph.Cafferky, Dominick.Cogan, Patrick.Commons, Bernard.Costello, John A.Dockrell, Henry M.Donnellan, Michael.Doyle, Peader S.Fagan, Charles.Giles, Patrick.Halliden, Patrick J. |
Heskin, Denis.Hughes, James.Keating, John.Keyes, Michael.McGilligan, Patrick.McMenamin, Daniel.Morrissey, Daniel.Mulcahy, Richard.O'Higgins, Thomas F.O'Reilly, Patrick.O'Reilly, Thomas.Sheldon, William A.W. |