Dáil Éireann debate -
Thursday, 20 Nov 1952

Vol. 134 No. 14

Ministerial and Parliamentary Offices (Amendment) Bill, 1952—Second Stage (Resumed).

Minister for Finance (Mr. MacEntee)

When I moved the Adjournment, I was referring to the terms of Article 2 of the Constitution of the First Dáil Éireann. That Constitution, among other things, provided that "those who are in the office in the Ministry from time to time shall have complete executive power". "The Ministry," it says, "shall consist of a President of the Ministry elected by Dáil Éireann, and not more than nine executive officers, each of whom the President shall nominate and have power to dismiss."

It then went on to provide that every Minister "shall be responsible always to the Dáil", and that "the names of Ministers shall be submitted to the Dáil for confirmation during the meeting at which the President shall himself have been elected to his office, or at the first meeting after their nominations by the President."

In short, Article 2 of the Constitution of the First Dáil which, as I have already indicated to the House, was amended in April, 1919, provided for a Ministry which was, in the terms of the Constitution itself, to have complete executive power, and, as the Article which I have quoted makes clear, was to consist of a President and not more than nine Executive Members who were to be nominated by the President.

Now, the nominations by the President were to be subject to ratification by Dáil Éireann and were to be effective, as the text of the Article proves, only on such ratification. On the 2nd April, 1919, the then President, Mr. de Valera, nominated, and the Dáil approved, seven Secretaries or Ministers together with two other members who were described as Directors in charge of Departments, one being in charge of the Department of Propaganda and one for Agriculture. A Director of Trade and Commerce was further nominated by the President and approved of by the Dáil, and he, I think, subsequently became styled as Minister. A Minister for Irish and a Director of Fisheries were nominated in November, 1919, but these nominations were not approved by the Dáil until the 29th June, 1920, which was the date of its next meeting.

It is important to note the lapse of time between the date of actual nomination on the part of the President, which was the date upon which these Ministers took up duty, and the date upon which their nominations were ratified by the Dáil. On a strict interpretation of the Principal Act and of the Constitution this service between November, 1919, and June 1920 could not be reckonable for pensionable purposes. This is the position which we deal with in Section 2 of the Bill.

Quite obviously, these persons were functioning as members of the Executive of Dáil Éireann. They were running all the risks and were carrying all the responsibilities which attached to that membership during this period from November, 1919, until June, 1920, when their nomination was eventually ratified by Dáil Éireann. I want to emphasise again that that was the first occasion on which the Dáil met after they had been nominated by the President and had taken up duty and was, therefore, the first occasion upon which their appointments could have been formally ratified.

The position, therefore, was that on the 2nd April, 1919, we had a Ministry consisting of a President and seven Ministers, together with two Directors; that is to say, we had the full Executive which was provided for under Article 2 (b) of the Constitution of the Republic, which, as I have already informed the Dáil, was to consist of the President of the Ministry and not more than nine executive officers. It is true that that Constitution was subsequently departed from to this extent, that as the organisation of the Republic began to develop and the Executive was able to undertake increased and expanding responsibilities the need for other Departments began to be apparent and had to be met, and eventually the real executive Government of the country consisted of the President, eight Ministers and four Directors, and this was again increased, I should say, to nine Ministers and four Directors in January, 1920. In addition, as members of the Executive were apprehended and imprisoned, substitutes were appointed from time to time for those Ministers, Directors or Secretaries, as they were variously called, and, I think, somewhat indiscriminately called, who were imprisoned or who were abroad on national business.

When the principal Act was introduced in 1938, it was not the intention of the Government in the year of its introduction, namely, 1938, to make any differentiation between these various officers, no matter by what style they might be referred to, in regard to eligibility for pension. In fact, when I was speaking in the Seanad on the Second Reading of the Ministerial and Parliamentary Officers Bill, I said that the Bill covered all those who have already held Cabinet office or office in the Government under the First, Second or Third Dáil. The reference is to Volume 22, column 400. It is quite clear from the records in my Department that service as a Director was thought to be covered by the 1938 Act. The Government feel now, as they felt then, that it would be invidious to exclude such services and, accordingly, provision for the removal of the doubt to which I refer——

Mr. McGilligan

It is not a doubt.

Mr. MacEntee

I say a doubt.

Mr. McGilligan

It is a certainty.

Mr. MacEntee

The Deputy was not here when I was dealing with the situation.

Mr. McGilligan

I know the file very well.

Mr. MacEntee

The Deputy did not do the House the courtesy of being in attendance when I opened on the Bill.

Mr. McGilligan

The conventions of the House were broken last night.

Mr. MacEntee

I have pointed out the reasons why such doubt exists. The Deputy is entitled to his opinion.

Mr. McGilligan

Has the committee reported on it?

Mr. MacEntee

The Deputy is entitled to his opinion.

Mr. McGilligan

It is not my opinion.

Mr. MacEntee

I am saying that there was a doubt because, if there had not been a doubt, we should have a report from the Committee of Reference which was set up under Section 18 of the Bill. We have no such report and the clear conclusion to be drawn is that the committee did not find themselves in a position to make a report on this question of eligibility, having regard to the statements which were made in the House and also, as I have said, the somewhat indiscriminate way in which the titles "Cabinet Minister", "Secretary" and "Director" had been used during the proceedings of the First Dáil. However, I again want to repeat that the Government feel that it would be invidous to exclude services such as I have described and accordingly provision for the removal of the doubt is included in Section 3 of the Bill.

It is quite true that if the Cabinet of the First Dáil had been constituted on the basis which now exists, whereby all the Ministers are Cabinet Ministers, the difficulty would not have arisen. It would be anomalous, however, that, while provision has been made for existing Parliamentary Secretaries who have never been members of the Cabinet, Ministers of the First Dáil who held office at great personal risk should be excluded from benefit merely because they were not members of what you might describe as the inner or essential Cabinet.

It will be appreciated, I am sure, that in the circumstances of the period, when in fact this was a Cabinet operating and conducting a war in a territory which was occupied by the enemy, it was essential that there should be a small group who would operate as a war Cabinet, as an inner Cabinet, and that is clearly what was envisaged by the use of the term "member of the Cabinet" in the Constitution of the First Dáil. As I have said, that was an instrument which was born of the circumstances in which the Government of Dáil Éireann functioned; it was an indispensable instrument for the Government of the day. But the mere fact that circumstances imposed it upon our Constitution in the first instance should not operate to the disadvantage of Ministers who were appointed as such by Dáil Éireann and who, under the Constitution at that time, as is quite clear from the Article which I have recited, formed the Government of the day.

Such a differentiation would, in my view, be invidious inasmuch as the members of the Executive, although they were described as Directors, Secretaries or Ministers, bore full ministerial responsibility for their Departments equally with the members or what I have described as the inner Cabinet. They ran equal risks and endured equal hardships. Indeed, the position might be fully exemplified if I point out that of the four Directors only one succeeded in carrying on continuous administration without the necessity of appointing a substitute during imprisonment. Perhaps in that connection it might be relevant to refer to a statement which was made by one of these Directors, the late Countess Markievicz, who, as her contemporaries in this House will recall, was the Secretary for Labour in the First Dáil Cabinet. Speaking in the Dáil on the 17th August, 1921, she said:

"Each Deputy has a copy of the report of the Ministry of Labour in which you will find full information about the activities of the Ministry from the time I first assumed office in 1919 until the 1st February this year when Joseph MacDonagh was appointed as Substitute Minister.

I was not long in office until I was arrested and Thomas Kelly took over the work. I came out again after four months and returned to work until I was rearrested in the autumn of last year."

Joseph MacDonagh, described as Substitute-Minister for Labour, then spoke as follows:

"I wish to render account of the activities of the Dáil Éireann Ministry of Labour from the 1st February, 1921, which was the day on which the Ministry came under my control."

In the reports from the Labour Department circulated to the members of An Dáil on the same day the following appears:

"Mr. McGrath, T.D., was appointed Substitute-Minister for Labour at the end of October (1920) and he was arrested on 2nd December."

Thus we have the position that not only had we members of the Executive who ran all the risks and carried, as I have said, all the responsibilities during this period of the Black and Tan war, but we also had persons who were appointed as substitutes for them and who, when the original appointees were arrested, took over responsibility for the conduct of the departments of the absentees. This Bill accordingly takes power to provide that substitutes for Ministers, Secretaries and Directors shall rank equally with the original appointees for pensionable purposes.

The next section in the Bill to which I refer is Section 4. The original Act of 1938 provides that a minimum of three years' service would be required to qualify for a pension in respect of ministerial service, but that service prior to the Truce should be counted as double for pension purposes. The amending Act, however, of 1949 provided that, if a Minister died in office, his widow might be awarded a pension, even though he had not completed three years' service. Section 4 of this Bill is intended to put the widows of persons who served from 1919 to the Truce, during the Black and Tan period, so to speak, in an equivalent position. Accordingly, Section 4 will enable a pension to be awarded to widows of persons who held ministerial office before the Truce, but who did not die in office even though such persons' service may not have amounted to the full three years. The total cost of the Bill to the public funds will not exceed £1,150 per year so far as we can calculate it.

Mr. MacBride

How many cases are involved?

Mr. MacEntee

There may be six or seven, but some may not apply. We are covering, as far as we can see, all the cases that remained uncovered by the 1938 Act. The figure I have given assumes that every person entitled to benefit under the Bill will apply, and the total cost to the State will be in the order of £1,150. Pensions, of course, will not be payable, except upon application. That is provided for in Section 5, and it is quite clear, I think. In the case of application which is made within six months of the date of the passing of the Act, the pension will begin to run from the date of the passing of the Act, but in the case of any application made later than six months after the passing of the Act the pension will begin to run from the date of application.

This Bill will, I think, fulfil so far as possible the obligations we owe to the few remaining persons who participated in the establishment of this State and who have so far been excluded from the benefit of such provisions as we have been able to make for their contemporaries.

Mr. J.A. Costello

There will be, of course, no opposition to this Bill and there is only one matter to which I wish to draw the Minister's attention. He hopes that it will complete all these cases and cover the people to whom, it is felt, pensions or gratuities should be given. I will ask the Minister's sympathetic consideration for one case, however, which I think has been the subject of an oversight. Under the provisions of the Acts of 1938 and 1949 the position arises that if a particular man who has been a Minister ceases to be a Minister he is debarred from pension if he is in receipt of a pension from other sources such as for local government service. If he dies, his widow does not come within the provisions of the Act of 1938 because he had not been entitled to a pension. I think that there is an oversight in this. It affected only one person, one of my colleagues. I could not put down the amendment because I would be out of order.

Mr. MacEntee

If the Deputy will be good enough to give me the particulars I will deal with the case in the same spirit as I have dealt with the other cases.

Mr. J.A. Costello

This is the only opportunity I had of raising the question. So far as I know it affects only one person and anybody who happens by chance to be in the same position as she is. It affects only this widow.

Mr. MacEntee

If the Deputy will be good enough to give me particulars I will see if I can cover the case.

General MacEoin

As has been announced from our front bench, the Bill is not being opposed. I am very glad that the Government and the Minister have taken this step. If I might say so at this stage, however, the Minister in his speech made a gallant effort to have it opposed. I do not know whether that was intentional or not, but it was quite obvious that the Bill was not being opposed and then he proceeded to repeat what he considered to be the history of the period. I do not cavil at his descriptions of the Ministers and directors of the various Departments of State. I think he was quite correct in all that. I am also perfectly satisfied with a Bill —and will support it fully—giving recognition to that service and to the widows of these officers. I do not know, however, what the Minister's intention was when he made two statements. He spoke of the President of the Republic and then he had to correct that later and say that it was the President of the Executive,—the President of the Cabinet were the words he used—the Ministry. I do not want the Minister's statement to go unchallenged in that respect. The head of the Government then was the same as to-day, the Taoiseach or Prime Minister of the Government. I just want to stress that. The term "President of the Republic" was not established until August, 1921. I do not want to get into a controversy about it but I want to make sure at this stage that the Minister's remarks will not go unchallenged.

It is time that these people would be provided for even though some of them may be wealthy enough not to want it. Nevertheless, recognition should be given to them for their services. If they feel like applying for this particular pension they should get it and be free to do with it what they think fit. I am glad to say there are some of them who do not require it but I know that there are others now about to be covered who do require it. I want to congratulate the Government and the Minister for their part in the work of giving this recognition now.

When I saw this Bill I thought I might be able, under it, to cover one outstanding case of that particular time. Having consulted the Ceann Comhairle's office, I do not think I would be in order in making an amendment or in suggesting an amendment to it, because to include the case that I have in mind would change the name and title of the Bill and of the previous Act. As this is only an amendment to a previous Act, it appears I would not be in order in doing so. However, with the Minister's permission, I will make a submission to him during the week upon a certain case in which I think justice should be done. This person has suffered a very grave injustice arising out of his services to the State at the time. I hope it will not be necessary to introduce legislation to cover the matter but, if it is, I hope the Government and the Minister will be as generous in that case as they are in these, because the person I have in mind equally rendered service of a very important nature to the State.

Mr. S. Collins

Like the Leader of the Opposition and Deputy MacEoin, I welcome the introduction of this Bill. I have a few non-controversial queries to put to the Minister, and I hope that this Bill will cover all the difficulties that have arisen. Like the Leader of the Opposition, I would press the Minister on one case that could arise as referred to by him. It is purely a question of the deletion of a date in the Act which would rectify that problem. I wanted to ask the Minister, not in a state of acrimony, was it not possible—where this Bill, as I know it does, covers one specific case in which a good deal of hardship has ensured— if the recognition was given, that apart from the pension, some ex gratia payment in respect of the long period of non-recognition, could have been recommended. I am making that plea and that suggestion to the Minister in a completely non-political way, and I want the Minister to appreciate that. While we all object to retrospection in legislation where a retrospective payment of pension over a long period might involve a big sum, I feel the Minister could, with the complete acquiescence of the House, apart from giving a grant of pension to which the passage of this Bill will entitle the person, make an ex gratia payment in an endeavour to meet the exigencies of the person's situation.

I want to express my view as a young person and not as a contemporary of the people who are to benefit. I feel this is an instalment of justice that is long overdue. How the original difficulties arose or how the original mistakes were allowed to occur, I do not know, but it does seem a bit harsh that we now admit in a non-contentious way that these directors have a certain standing. I do not know why any difficulty should ever have arisen. My own feeling is that irrespective of what side anybody may have taken afterwards, irrespective of what may have arisen as a result of the split, there was a very clear-cut pattern of government there in which the title, whether it was "Director" or "Minister", did not mean any difference other than Tweedledum and Tweedledee. The responsibilities were vested in the same way and it was a question of a use of words that may have been the effective barrier to somebody getting a benefit that we now feel in an unanimous spirit in the House was in justice due to them.

That is why I rose to my feet at all, to say to the Minister in a non-controversial way that where the omission to cover these specific cases can in the main be laid at the door of this Legislative Assembly—I would not say it was at any particular stage of the country's history or development— where some of the causes of this difficulty must lie on our own shoulders, I feel that better might have been done. I am glad to know that some of the people who would benefit if circumstances were different under this Bill have prospered in the new State. It is —and I am sure we all feel proud of the fact—a tribute to their own personal capacity, their own ingenuity and industry in the new State. Giving my own personal viewpoint, I would say that where a Bill has unconsciously operated hardship for a number of years against people, where the responsibility, even through inadvertence, was indirectly ours, we should go as far as we can, particularly in the unanimous mood the House is in on the measure, to give what assistance we can.

I sincerely hope this legislation will achieve the closing of the gap in connection with this whole problem and will cover completely everybody who deserves to be considered, irrespective of what his politics may be and irrespective of what his allegiance may subsequently have been. I hope it will cover everybody, irrespective of status or creed, who contributed, as all those people did, in the spirit of unity prior to the Truce in 1921, to the establishment of the foundations of the Parliament in which we can exercise the right to-day to give them recognition. As a young man in this House, appreciative of the sacrifices that made this Dáil possible. I would, in my day, plead with the Minister that that particular class of person, and especially the widow of that class of person, would now be compensated to whatever generous extent this House will find possible.

Mr. MacEntee

So far as I have been able to ensure it, this Bill will cover all outstanding cases and it will cover them irrespective of their present political views. The original Act provided not merely for those who had served in the Executive of Dáil Éireann but also for those who had served in the Provisional Government of Saorstát Éireann and it was intended that, irrespective of the division which had developed between former comrades, they would all receive what was the barest modicum of justice and recognition which this State could give them.

There have been these flaws in the Act and, no doubt, we must all take responsibility for them, but when Deputy Collins is speaking of them I would ask him at least to concede it to those who were responsible for the original Act that it was passed, debated and discussed here in an atmosphere of acute controversy and was subjected to a great deal of misrepresentation.

That was one of the reasons why we were unable to remedy the defects in the Act at an earlier stage. Thank goodness, we have come to take a more normal and a more humane view of the matter, and it has therefore been possible for me to bring in this Bill knowing, without having taken any soundings in advance from the members of the Opposition, that it would receive their sympathetic consideration. It was possible for me to proceed on the basis of that assumption well knowing that my hopes would not be disappointed.

I cannot, however, undertake to give any section of this Bill retrospective effect because, as the Deputy will see a person may take advantage of it at any time that he or she may think fit to do so. That would mean, accordingly, that if a person deferred taking advantage of its provisions until some years hence, that a retrospective award might impose what would be regarded as a comparatively heavy burden on the taxpayer.

There is something, however, to be said for the plea which the Deputy has made to provide an ex-gratia grant for those who have suffered by reason of the earlier faulty draftsmanship of the Act. On the other hand, as against that, an attempt was made— not a very adequate one—to provide employment for at least one person and, I think, for another, who had suffered by reason, as I have said, of the defects in the drafting of the original Act. I have to take that into consideration also.

However, as I say I will consider this question of making some lump sum payment which though it will not compensate any of the people affected to the same extent as giving full retrospective effect to the measure will be helpful and will have regard to the circumstance that most of them have reached an advanced age and their enjoyment of this pension in the ordinary natural course may not be very prolonged. I think there is something to be said for the point of view which the Deputy has put before me.

I would again like formally to repeat the assurance which I have given to Deputy John Costello that if he gives me particulars of the case he has in mind I will endeavour to see if I can bring in an amendment to cover it.

Mr. McGilligan

What would it cost to make it retrospective?

Mr. MacEntee

It would cost quite a considerable sum. I cannot say off-hand.

Mr. McGilligan

£100,000?

Mr. MacEntee

No.

Mr. McGilligan

£150,000? There are only six people.

Mr. MacEntee

It would have to date back until 1938.

Mr. McGilligan

Six people.

Mr. MacEntee

I know.

Mr. McGilligan

There must be a calculation.

Mr. MacEntee

I am not making any mental calculation. If I make an estimate, a forecast or a mental calculation, my words are challenged subsequently as if I spoke with all the divine inspiration of a prophet. I am not going to do that.

Mr. McGilligan

Nobody would ever accuse you of that. Let us go on to practical matters. What would it cost?

Mr. MacEntee

Could not Deputy McGilligan, for once, stop muddying the waters?

Mr. McGilligan

What would it cost?

Mr. MacEntee

We have approached this Bill in the spirit of humanity and justice and I would prefer that Deputy McGilligan would keep a sour puss out of it.

Mr. McGilligan

When we are told it would impose a burden on the taxpayer to make it retrospective, how great would the burden be?

Mr. MacEntee

I do not know.

Mr. McGilligan

There you are. So, it would be very heavy?

Mr. MacEntee

I have not said that it would impose such a burden on the taxpayer, though it would be of some substantial amount but the principle is entirely bad.

Mr. McGilligan

The usual thing— you are afraid to do it in this Bill because it might be asked for elsewhere.

Question put and agreed to.

An Leas-Cheann Comhairle

When is it proposed to take the next stage?

Mr. MacEntee

As I may have to consider one or two amendments in view of suggestions that have been made to me here, I would say this day week.

Mr. McGilligan

By that time you may have calculated the expense of retrospection.

Mr. MacEntee

We have to put the Bill through in spite of you.

Mr. McGilligan

Not in spite of me but with my consent. I would like to compare these people with the ballroom proprietors. I would like to know whether or not it would cost as much as giving one year's remission of tax to the ballroom proprietors. That is what I would like to face up to.

Next stage ordered for Thursday, 27th November, 1952.