To-day I put down a question to the Minister, No. 42, asking him if he would publish the rules under which the Referee defines active service under the Military Service Pensions Acts, 1924, 1934 and 1949, and if he was aware that applicants find it difficult to present their case. In his reply he stated he was not aware that they experienced any difficulty in presenting their cases owing to the absence of published rules defining active service. Then he went on to say that the interpretation of the term active service was one solely for (a) the Board of Assessors under the 1924 Act and (b) the Referee under the 1934 Act.
I admit that as the Act stands that is so, that the assessors under the 1924 Act are the people who interpret the words "render active service" and what constitutes it; and that the Referee under the 1934 Act himself defines or interprets the meaning of the words "rendering active service." While that is so, knowing the Board of Assessors and the many Referees in the many years since 1934, I know that they have a set of rules which they apply when assessing the service of an applicant before them. I put it that the applicant is under a grave and serious disadvantage when he does not know what he has to prove. Let me give this example.
In the Act of 1934 it is laid down that that Act applies to a person who at any time was a member of the Executive of the Volunteers or a member of the Headquarters Staff of Oglaigh na hEireann, or who was on the Intelligence Branch of any of the forces, and so on. That is a definition in itself. Yet applicants who came within that definition, when they applied, were rejected by the Referee on the grounds that they had not active service. One of these applicants went to court and the High Court held that that person, as he was a member of the Executive of the Volunteers, was dispensed from the responsibility of proving service and was automatically entitled to a service certificate, and he got it. Therefore, the Referee had to change the rules which he then had. He submitted certain rules at that hearing but he had to alter them.
Later, another applicant, who rendered service in 1916, applied. He was mobilised, he marched out and he did not, as he admitted, fire any shot, but he was out a certain length of time. The Referee declared in that case that he was not a person to whom the Act applied. He took an action to the High Court and it was tried by three judges, and they found that, because he was mobilised and because he obeyed the orders he received and was out during the week, he had rendered service as laid down, in their opinion, in the Act. Then the Referee granted him the certificate. When that happened the Referee had to change his rules again.
Regarding the Board of Assessors under the 1924 Act, I admit that they decided that, for the purpose of defining "active service", you had to have so many—at least two—major engagements; but then they found that that did not work properly, and they put in what was known as the time lag —"how much time did you spend or did you give any service?" The whole question that arose was what constituted service and what this House meant when it was laying down those words, "rendering active service".
Now, the phrase, "rendering active service", has, in my submission, a specialised meaning. Membership of the organisation, it was held, was not sufficient to qualify; but I feel, and I have always held, that it did—because membership of the organisation here was membership of an Army which was then in face of the enemy, and once you were opposed to the enemy, as such, you were then on active service. Some of the Referees held, and the High Court held, that the applicant should not have to be in the front line of battle or that the applicant who was in the front line of battle was on active service, but that the man who was out of the smoke and bustle of battle, but was holding the rear, was on service; but they went further and said he must have general service. Then the question arose as to what constituted "general service", and again the Referee has a set of rules which lays it down as to what constitutes general service. Let me be clear on that.
The Minister to-day asked me did I charge any Referee with being dishonest. Under no circumstances do I do any such thing. I do assert this, that the Referee or the Board of Assessors, if they so desire, could at the moment ask an applicant certain questions which, by his answering "yes" or "no", can disqualify him for a certificate and, equally, they can ask him a series of questions that, by his answering "yes" or "no", would qualify him. If the applicant had the set of rules which govern the interpretation of "active service", he would know what constituted the service and what evidence he should tender to prove that.
As a matter of fact, I know applicants who went in. Certain questions were put to them. It was then put like a police report, in the form of a statement; and the applicant came out and said: "Oh, the man who examined me was the decentest fellow in the world; all I had to do was say ‘yes' or ‘no.'" But the applicant got the surprise of his life a couple of days afterwards when he got a notice that the Referee proposed to report within 21 days that he was a person to whom the Act did not apply. Then he was wondering what happened. Again, some of the witnesses did not know what they had to prove and if those rules were available there would be no such difficulty.
In the courts there are court rules for practically every action that might be taken before a judge. The solicitor and counsel know the set of rules under which they can operate. They know what questions can be asked by their opponents or by the judge and what constitutes the rules of evidence; but in this—which is a very important court and which has the equivalent in power of the High Court—there are no published rules. If they were published, this difficulty would be avoided of one man having a certain type of service and another having the same and the two applicants going in but, because of the way the evidence is tendered, one succeeds and the other fails. That creates difficulty for everybody concerned.
The rendering of active service has many definitions. Unfortunately, we had not one here of our own, and it was, more or less, taken from either British, American or French army services. Generally speaking, a British soldier serving at home in England was not regarded as on active service; yet, if he were sent out to Gibraltar or anywhere else overseas, he would then be declared to be on active service although he may not have fired a shot.
In England during the Napoleonic war and during the 1914-18 war, when there was a likelihood of invasion, the soldier at home was deemed to be on active service. However, it was held later that a soldier serving in the armed forces did not necessarily have to be on anything but training to be on active service, and death while on training was held to be active service. The judges so held in Britain and elsewhere.
The Minister says that it is not his responsibility to make the rules, and to-day I thought he was rather ungenerous when he said I was Minister for a certain length of time and did very little about it. Since the Act was established in 1924, I have been arguing this in season and out of season, and I will continue to argue until justice is done.
