Defence Bill, 1951—Report Stage (Resumed.)

Debate resumed on amendment No. 51.

On Friday last, when I moved the adjournment of the debate, I indicated that I would avail of the opportunity over the week-end to look up Canadian law, British naval law and the Police Forces (Amalgamation) Act, 1925. These were three Acts specially mentioned by the Minister and I was particularly interested in what the Minister said on that point. I find, in column 316 of the Dáil debates for the 11th February, 1954, that this is what the Minister said:—

"The decision to change over completely to the regulations system was taken by one of my predecessors in 1949. While the decision was based mainly on administrative considerations there are ample precedents for dealing with such matters by regulations rather than in legislation. In this country, for example, forfeitures and penal deductions in the case of the Garda Síochána are dealt with by regulations made by the Minister for Justice (with the concurrence of the Minister for Finance) under Section 12 (1) of the Police Force Amalgamation Act, 1925. The British, in spite of having these provisions in their Army Act, deal by regulations with forfeitures and deductions in the case of the Navy. So they are not wedded to that system any more than we are. That this procedure is now the modern trend in other countries is indicated by the fact that the Canadians adopted the regulations system in their National Defence Act of 1950. I made that clear at our discussions during the Special Committee debates. I do not think I impressed Deputy Cowan——

Captain Cowan: You did not convince me."

I regret to say that, having read the three Acts referred to, I came to a completely different conclusion from that of the Minister. When the Minister made that statement it was not, of course, a statement that was made without preparation. It was a deliberately made statement, he apparently having considered the Acts referred to. I want to say that in my view it is a complete misinterpretation of the three Acts that I have mentioned. That is a very serious cause of worry to me in regard to what is proposed here, if it is proposed to allow regulations to be made and to be misinterpreted. I will submit to the House that these Acts and Statutes referred to have been misinterpreted, and I think that shows why this House should only, for the gravest reasons, give the power which is in the section and which I want to delete.

Let me take the first one which is the Police Forces Amalgamation Act of 1925. There are three Acts. There is the Garda Síochána Act of 1924, the Police Forces Amalgamation Act of 1925 and there is a slight amendment in the Act of 1926 which does not affect the matter very much. I will take first the Police Forces Amalgamation Act of 1925. I refer Deputies to page 169 of the printed volume of the Statutes. I want the House to pay particular attention to the wording of Section 12 of that Act which says that:—

"The Minister may with the sanction of the Minister for Finance from time to time by Order regulate and appoint the rates of pay and allowances (including conditions applicable thereto) to be paid to the several ranks and to the several grades of each rank of the officers and men of the amalgamated force."

I want to say that is the section which deals with the rates of pay, including the conditions applicable thereto. That is what sub-section (1) of the section says, but I want the House to listen to what sub-section (2) says:—

"Before making an Order under this section the Minister shall cause the draft of the Order to be submitted to the several representative bodies representing the several ranks and grades of the amalgamated force who would be affected by the Order when made and shall consider any representations made to him in respect of the draft Order by any such representative body."

I must say that I was amazed when I came to read that Act. That is an Act which deals with an entirely different matter. It deals with a representative body, established by law, on which there are representatives of every rank in the grades under the rank of surgeon, and which has the statutory power to assemble and make representations to the Minister.

The Minister for Defence knows, and his advisers should know, that under no circumstances could we have such a trade union organisation in the Army—a representative body of the sergeants, corporals, privates, company sergeants, sergeant majors, and company sergeant majors. But that is what the Police Forces Amalgamation Act prescribes. That section of the 1925 Act went further. I do not want to labour the matter or weary the House, but it set out, in subsequent sections, provisions whereby the rates of pay then payable to the commissioner, deputy commissioners, assistant commissioners and surgeon, and the pay of each member of the amalgamated force below the rank of surgeon and the pay of each member of the amalgamated force not hereinbefore provided for shall be in accordance with the rates of pay that were then in existence unless varied by an Order made under the section. The section also provides that the allowances payable to each member of the amalgamated force stationed in the Dublin metropolitan area shall be in accordance with the rates and conditions laid down by the Dublin Metropolitan Police Allowances Order of 1920.

First and foremost, those were regulations which only related to rates of pay. What is in dispute here is not rates of pay but deductions from pay, penal deductions and forfeitures of pay. Where it is proposed to make any regulation in the case of the Garda Síochána in regard to pay, before the Minister for Justice or the Minister for Finance can do anything in regard to it, the matter must be referred to a body which is in the nature of a trade union, a body which has power to make representations in regard to pay and which can publish its own journal. In fact, it does publish its own journal in which there is very often criticism of the administration of the Garda Síochána. It is not outside the knowledge of this House that police forces, subject to similar Acts in other countries, have gone on strike, and that, in fact, there have been whimpers and rumours of police strikes from time to time in this country. Therefore, I say, with all respect to the Minister personally, that that is not a statute which should have been quoted in this House in support of what it is proposed to do in the section and of the words which I want to have deleted from it.

I take a very serious view of that. I did so without having had an opportunity of seeing it—of only hearing the Minister mention these Acts. I thought that the precedents were not good precedents. An examination of the Acts proves that I am entirely right. It establishes very strongly in my view that the persons who advised the Minister are not competent in the interpretation of statutes or of the effect of statutes.

The Minister is responsible to the House and not the officials.

The Deputy has been continually referring to the Minister's advisers. He should stick to the Minister.

I want to put it this way. As far as the House is concerned, the Minister is responsible but, obviously, no Minister would have the time to read and to study all these Acts. Somebody has to advise him and the best that the Minister can get is the best advice that is available. That is advice that should be given to me and to every Deputy in the House. I take exception to its being quoted in support of this matter in the House. That is bad enough. I could, if I wanted to, waste the time of the House and spend a lot of time on that Act, but I have no intention of doing that.

Major de Valera

Might we get one point clear? Is it the Deputy's point that a certain thing was quoted?

Major de Valera

The Deputy's point is that, in support of the section with which the Deputy has been dealing in the House, the Act to which he has referred was quoted as a precedent. Is it the Deputy's point that these Acts are in no way a precedent for the section because they are completely different, that they are not the same type of regulation, that the regulations made under that Act are in respect of scales of pay only and have nothing to do with deductions or forfeitures?

I will explain it briefly to the Deputy. In reply to me, the Minister said:—

"The decision to change over completely to the regulations system was taken by one of my predecessors in 1949. While the decision was based mainly on administrative considerations there are ample precedents for dealing with such matters by regulations rather than in legislation. In this country, for example, forfeitures and penal deductions in the case of the Garda Síochána——"

I want to repeat that:

"forfeitures and penal deductions ... are dealt with by regulations made by the Minister for Justice (with the concurrence of the Minister for Finance) under Section 12 (1) of the Police Force Amalgamation Act, 1925."

Section 12 (1) is very simple. It says:-

"The Minister may, with the sanction of the Minister for Finance, from time to time by Order regulate and appoint the rates of pay and allowances (including conditions applicable thereto) to be paid to the several ranks and to the several grades of each rank of the officers and men of the amalgamated force."

Major de Valera

"Conditions applicable thereto"—what would be the meaning of that?

That is a matter of interpretation, but it does not mean forfeitures or deductions.

Major de Valera

Could forfeitures and deductions come within the meaning of the phrase "conditions applicable thereto"?

In my view, they could not. That refers to the rank, service and conditions applicable to particular pay.

Major de Valera

Are there such things as forfeitures and deductions in the Guards?

No. There is a disciplinary provision which provides for fines of limited amounts.

Major de Valera

Is there anything comparable to a deduction?

It is a different section. All I am saying is that the Minister quoted a particular sub-section which he said was a precedent for penal deductions and forfeitures in the Garda Síochána and during the week-end I had to examine it. I have the section and I am dealing with it, and I may say right away that he quoted the British Navy and the Canadian Defence Forces Act. I have both of these Acts to establish my case that there is a very grave misinterpretation in the Minister's statement to the House. I mention that now because I want to elaborate on it. Where we are dealing with a matter of such grave consequence, there can be no carelessness in regard to the language used and, as the House knows, when the Minister made the statement, he read out that particular paragraph. In other words, it was a prepared statement in answer to my amendment.

Major de Valera

In fact, have any regulations been made under Section 12 (1), and particularly under the provision "conditions applicable thereto" which in any way modify the amount by way of deduction?

I must say no on my present state of information, but when I resume I shall be able to clarify that point for the Deputy.

You are getting great help in this.

I appreciate all the help I am getting from Deputies in regard to it and I am certain the Minister appreciates the help I am giving in regard to this serious matter. On hearing first of this Police Force Amalgamation Act of 1925 from the Minister, I thought it was no precedent for the Defence Forces. I come now to the Canadian Act.

You are satisfied that what has been quoted as a precedent for the Defence Forces is in fact not germane to the Defence Forces at all?

That is my view.

Major de Valera

A precedent need not be directly related. What has been quoted as a precedent is not a precedent at all is what the Deputy is trying to say.

That is as far as the Garda Síochána are concerned and I hope that when I resume later on I shall be able to help with the matter of the regulations. The Minister quoted the Canadian Act and I have, with the help, which I gladly acknowledge, of the Canadian Ambassador, been able to read the Canadian Act. It says in Section 36 (1):-

"The pay and allowances of officers and men shall be at such rates and issued under such conditions as are prescribed in regulations made by the Governor in Council."

I want particularly to deal with that—"the Governor in Council" in Canada. Sub-section (2) says:-

"The pay and allowances of officers and men are subject to such forfeitures and deductions as are prescribed in regulations made by the Governor in Council."

Sub-section (3) then says:-

"Unless made in accordance with regulations prescribed by the Governor in Council an assignment of pay and allowances is void."

Here is what Section 14 of the National Defence Act, 1952, of Canada says:—

"Where in any section of this Act other than Section 14 and this section there is express reference to regulations made or prescribed by the Governor in Council in respect of any matter the Minister does not have power to make regulations pertaining to this matter."

It is as clear as a pikestaff that, in Canada, the Minister has no power to make these regulations, although that Act was quoted for the House as giving the Minister power in Canada to make the regulations.

I want the Minister and the House to consider the position of the Governor in Council in Canada—his constitutional relationship to the King, his Privy Council and their relationship to parliament where they have a Minister like our Minister. It is laid down that the Minister has no power to make regulations where the Act says these regulations should be made by the Governor in Council. In Canada, the Minister for Defence may make regulations dealing with discipline and so on as here, but the soldier's pay is protected and can only be affected by an order made by the representative of the King in Council because of the old position of the royal prerogative, which I will open up on the next occasion.

Debate adjourned.