Committee on Finance. - Defence Bill, 1951—Report (Resumed).

Debate resumed on the following amendment:—
In page 53 to delete Section 103 (3), lines 28 to 38—(Deputy Cowan).

I was replying to the debate on my amendment No. 60 and I had almost concluded when the debate was adjourned. The Minister made the point in replying to my amendment, a point which he made on a number of sections, that the power contained in the sub-section which it is proposed to delete, would never be unreasonably exercised. He said that so far as he himself is concerned, if he were operating that sub-section, he would not operate it harshly or in any other than a reasonable manner, that he was certain his predecessor would have done the same and similarly that any Minister who succeeded him would also do the same. He pointed out that the difference between himself and me in this regard was that he had absolute confidence——

——absolute faith in a Minister who might be called upon to exercise the functions that are contained in the sub-section. That gave me somewhat to think over the weekend and I did remember—and I should like to put it on record—one incident which I think might be relied upon in regard to this very point and in regard to the differences that exist between the Minister and myself on this fundamental point. Under the Bill as it is at the moment, and as it will be when it becomes an Act, the Minister for Defence will have power to make dress regulations. No one ever suggested in this Dáil or elsewhere that the Minister should not have that power. It was never assumed that power such as that would be unreasonably exercised by the Minister in power for the time being. I should like to draw the Minister's attention to what I am sure he would agree with me was a complete and absolute misuse of the power governing dress regulations under the old Act. For reasons that were never understood, a Minister for Defence issued an Order that every officer in the Army would wear uniform at all times, unless he was in possession of a pass or permission from a superior authority authorising him to wear mufti.

This does not seem to have any relevance to the amendment.

With all respect it is perfectly relevant to the submission that the Minister made, that a Minister, in exercising powers under this sub-section, would not act unreasonably.

Surely the Deputy cannot quote a case of that kind in support of this amendment?

I can quote a case where a Minister acted unreasonably in the exercise of a power given to him by statute. That is the only point I want to make.

The Deputy must refer to the amendment.

I am referring to the whole amendment to delete a sub-section which gives the Minister power to make regulations. The Minister has said that no Minister would act unreasonably in regard to that. I want to place on record an incident which shows that the power given to the Minister may be exercised unreasonably. I am not drawing on my imagination. I am giving the House an example.

Major de Valera

The Minister may not have been unreasonable. His purpose in making that regulation was not merely a question of dress.

I do not know what his purpose was.

Major de Valera

That was the time that Mr. Fitzgerald was Minister.

I have never been able to ascertain why the power was exercised but it has been accepted as an unreasonable exercise of the power given to the Minister. As I say, the Minister ordered that officers should wear uniform at all times and that they could not wear mufti unless in possession of a pass or permission from a superior authority. I was instructed at the time personally to draft the regulation and I remember being rather upset at such an Order being issued but in the Army one cannot reason why. One must do what one is told.

In drafting the regulation I took the Minister at his precise word that every officer would have to have the permission of his superior authority and the regulation—I do not know whether it was in 1929, 1930 or 1931—was made in that period, anyway. I drafted the regulation in such a way that every battalion officer had to have permission from the battalion commander, and every battalion commander had to have permission from the brigade commander; every brigade commander from the O.C. and the O.C. from the Chief of Staff. I put in a most amazing clause for the purpose of damning the whole thing—that the military members of the Council of Defence, the Chief of Staff, the Adjutant-General, the Quartermaster-General would all have to get permission from the Minister. I thought that would make the regulation so ridiculous——

Major de Valera

That is the second time you have made an amazing confession.

Yes. I thought the regulation would never be proceeded with but to my great surprise there was no objection from the military members of the Council of Defence, apparently, and the regulation was apparently accepted by the Minister and exercised for a considerable period. Officers were subjected—there is no doubt whatsoever about it—to something bordering on torture for a long period through the exercise of that particular regulation. I remember very well when we had a change of Government, the first thing we suggested to the new Minister who was then Mr. Aiken was to revoke or rescind that regulation and I am glad to say he did it immediately.

The Minister may say that that was an exception and that the exception would not prove a general principle in regard to the regulations but I think it will be accepted that there was a misuse of power in the dress regulation and it was used to punish officers for some reason or other of which I am not aware.

The Deputy's amendment deals with the question of political activities.

It deals with the power of the Minister to make regulations.

That has been discussed on an earlier section and the Deputy cannot discuss it on this amendment, which deals particularly with participating in political activities.

Major de Valera

I think that was the reason for that regulation at the time.

I am raising it now because the Minister said, on this particular amendment, that he had a different conception of what a Minister for Defence would do, to what I have, as to what a Minister for Defence might do, and it is because he might misuse——

Nevertheless, the Deputy must relate his remarks to this amendment—amendment No. 60.

My amendment is to delete entirely the phrase which gives the Minister power to make regulations, and I am making the case that if you give the Minister the wide power that is here it could possibly be misapplied and misused. Because it can be misapplied and misused I object to it being put there. The Minister on this particular section had said he could not visualise circumstances in which a Minister would misuse the powers granted to him. The power is very wide. It says "specified political activities", and I argued—and I do not want to repeat the argument now —but I did argue that the word "political", not being interpreted in the Act, can be used to cover a multitude of activities which, undoubtedly, are political but which, in the present Minister's conception, would not come within his power under these particular regulations.

I am arguing that this power to prohibit participation in specified political activities is too wide and too dangerous a power to give to any Minister because a Minister might misuse the powers, and a Minister following the present Minister at some future date would not be bound by what the Minister at the moment says is the intention in regard to that. I gave the example in regard to the dress regulation, as bearing out that argument. I am glad to say that there are not too many examples of conduct of the kind I have mentioned on the part of the Minister, but when one Minister in the matter of dress could abuse the power given to him to make dress regulations and when he could subject the whole Regular Army to a period of punishment, another Minister at some future date could, under this particular sub-section, submit the Reserve Defence Force to regulation and restriction and prohibition to which they would object and which would be bad for the force and for the country as a whole.

Major de Valera

I do not think those regulations were intended as punishment—in fairness to the Minister.

I do not know what the intention was, but I do know that nobody was able to know what was the purpose of them. I know this— that there was such strong objection in regard to these regulations that attempts were made subsequently to give a reason for the issue of the regulations. I have heard different people from time to time giving explanations which I know did not exist at the time.

The amendment deals specifically with political activities.

He might argue that a dress regulation could be a political matter.

Major de Valera

I think that was the purpose.

I think he can argue that the dress regulation could apply to the political Party that would be wearing some uniform that might be claimed as political.

Major de Valera

It would certainly be more difficult to get together for a meeting.

I do not think that would be fair. I would suggest to Deputy de Valera that after all at that time I was in reasonably close touch but I could not find a reason for it and if a reason did exist, it existed in the mind of one man only and no one attempted or endeavoured to explain it until years after when the thing was over and passed, and done with. Then somebody felt that there was a necessity to try to explain away conduct of that kind. Those are the observations I have to make in regard to this sub-section.

I am sorry that the Minister, if he thought there should be some power there, did not avail of the opportunity to try to limit that power as much as possible. In actual fact he proposes in amendment No. 61 to widen the force of the sub-section so as to include, not only officers of the Reserve Defence Force when they are on permanent service but officers of the Reserve Defence Force during a period when they are called out pursuant to the provisions of Section 88 of the Act.

I cannot do any more in any of these amendments than to put forward the force of reason. The force of reason is absolutely in favour of the line I have taken. I regret very much that the Minister has not seen fit to meet the amendment or to meet the intention behind my amendment by restricting the powers and limiting them in such a way as to ensure that they cannot be misused on some future occasion by a Minister for Defence.

Question—"That the words proposed to be deleted stand"—put and declared carried.
Amendment declared lost.

I move amendment No. 61:—

In page 53, Section 103 (3) (a), line 32, to insert "or during a period during which reservists are called out on permanent service under Section 88," after "force".

The amendment is the same as amendments approved by the Special Committee and is designed to regard a period during which reservists are called out in anticipation of an emergency under Section 88 in the same way as the period of emergency itself.

Amendment put and declared carried.

Amendment No. 63 comes before amendment No. 62.

I move amendment No. 63:-

In pages 53 and 54 to delete Section 104.

This, like all the amendments I have moved, is an important amendment. It is important because the section as it stands is a new section designed to disqualify members of the permanent force and the Reserve from being members of local authorities. While a member of the permanent force could not possibly belong to a local authority because he cannot be nominated or elected to it, the section provides that an officer of the Reserve Defence Force shall not be permitted to belong to a local authority under certain circumstances which are outlined in the section and which I will mention. It is necessary to understand the section. The section is divided into three subsections and the first sub-section is divided into three paragraphs. The first paragraph defines a local authority as "a local authority for the purposes of the Local Government Acts, 1925 to 1946, and includes a vocational education committee and a committee of agriculture." In other words, a local authority as defined in the Local Government Acts of 1925 to 1946 has been extended to include a vocational education committee and a committee of agriculture. The second paragraph of the sub-section says:—

"An officer of the Reserve Defence Force shall be deemed to be actively employed whenever, during a period during which a proclamation authorising the calling out of reservists on permanent service is in force, or during a period during which reservists are called out on permanent service under Section 88, he is employed on military service or duty."

The third paragraph says:—

"A reservist shall be deemed to be actively employed whenever he is called out on permanent service."

That is the interpretation part of the section. Then sub-section (2) says:—

"(a) A member of the Permanent Defence Force shall be disqualified from being elected or co-opted or appointed or being a member of a local authority."

Paragraph (b) of that sub-section says:—

"If a person, who is for the time being a member of a local authority, becomes a member of the Permanent Defence Force, he shall thereupon cease to be a member of that local authority."

In regard to that sub-section, there would be no difficulty about it.

Sub-section (3), paragraph (a) says:—

"(a) A member of the Reserve Defence Force shall, during any period during which he is actively employed, be disqualified from being elected or co-opted or appointed or being a member of a local authority."

It is intended by the Minister in a subsequent amendment to delete the two words "or being," so that the first paragraph of sub-section (3) would read:—

"A member of the Reserve Defence Force shall, during any period during which he is actively employed, be disqualified from being elected or co-opted or appointed a member of a local authority."

Paragraph (b), which is the most objectionable one, says:—

"Where a member of the Reserve Defence Force, who is for the time being a member of a local authority, becomes actively employed he shall thereupon cease to be a member of that local authority."

The Minister proposes certain amendments to that. He proposes to replace the last paragraph I have read by the following paragraph:—

"(b) The following provisions shall apply to a member of the Reserve Defence Force who is for the time being a member of a local authority—

(i) he shall not, during any period during which he is actively employed, act as a member of that local authority and if he does he shall thereupon cease to be a member of that local authority,

(ii) notwithstanding anything contained in any enactment relating to local authorities, he shall not by reason only of his absence from meetings of that local authority during such period be disqualified or vacate his office as a member of that local authority."

It is necessary to refer to the Minister's amendments so that the House will understand the section that we are dealing with. I feel that there are parts of this section which are reasonable, such as that which relates to the Permanent Defence Force, about which no point could possibly arise. A point has not arisen for many years and it could not possibly arise now. The provision that if a person is unable, because of permanent service, to attend the meetings of the local authority, he will not be disqualified for that reason, is a concession that was made by the Minister as a result of the discussions that we had in committee in regard to this matter.

We are then left with two clauses. The first is that a member of the Reserve of the Defence Forces shall, during any period during which he is actively employed, be disqualified from being elected to or co-opted on or appointed a member of a local authority. The next sub-section says that he shall not, during any period during which he is actively employed, act as a member of that local authority, and that if he does so act he shall cease to be a member of that local authority.

I have endeavoured to reduce the difficulties of the section, with its many amendments, to the smallest possible compass. The grounds of objection, therefore, are limited to these. I want to say, first of all, that I feel that any law dealing with election to a local authority should not be in the Defence Forces Act but should be in another Act. That is the first submission I want to make, that anything dealing with elections to local authorities should be in the laws dealing with elections to local authorities and not in this Defence Forces Bill.

We had a somewhat similar matter raised on a number of occasions in the House, where it was sought and, in fact, done, to include restrictions on standing for election to the Dáil or Seanad in different Acts of Parliament. The Tánaiste, on a recent occasion— I think while he was in opposition— said that he thought the time had come when the electoral laws and the laws dealing with nominations and the eligibility to stand for the Dáil and Seanad should be set out clearly in the Acts dealing with elections to those bodies. It is on the same grounds that I would make my first submission, that these laws dealing with local authorities should not properly be in the Defence Forces Bill. After all, we are going a very far distance, indeed, when we say in a Defence Forces Bill that a person will be disqualified from being elected to or co-opted on or appointed a member of a local authority, and we are certainly going a very far distance outside the scope of a Defence Forces Bill when we say that if a person who is a member of the Reserve of the Defence Forces attends a meeting of very non-political bodies such as a vocational education committee or a committee of agriculture he will cease to be a member of that local authority.

These seem to me to be provisions which are entirely foreign to a Defence Forces Bill and should not be in it. I say that I want to meet the Minister in reason with regard to the section. All that I want to eliminate from it are the unreasonable parts, what I consider to be the parts of it that trespass on the powers and responsibilities of another side of Government and another side of the Dáil. When we discussed the matter in committee, we were all agreed that the Minister should discuss the matter with the Department of Local Government and should endeavour to remove the difficulties that we saw there.

As I have said, the Minister has introduced amendments which are designed to meet views that were expressed in the committee. I want to admit that he has gone a long way towards meeting the views of the members of the committee, but on these two points I think the Minister has not gone far enough, and that it would be unwise for us to allow that section, with these particular provisions in it and even with the proposed amendments, to be passed into law in the form in which it is here. If the Minister were to indicate that he would reconsider the observations that are now being made in this House in regard to these particular things, and that, in the course of the Bill through the Seanad, he would be anxious to improve it further, then I think we would not have to delay very long on this section. But the section itself follows the whole trend that is in the Bill, the trend that is in the section that we have already discussed, of taking power to deprive a person who is of sufficiently good citizenship to be a member of the Reserve of the Defence Forces, of the honour that he has achieved by virtue of his public services and of his services to the community.

I think it goes without saying that any person who is elected a member of a local authority—extended as the interpretation of that local authority is by this section—any person who becomes a member of a local authority does so because of his value, of his worth and of his services to the community. It is my experience that it is very difficult for a person to become a member of a local authority. It requires long service to the community to enable a person to become a member of a local authority. This is the experience that I have had anyway, and whatever one may say about politics in the ordinary, narrow Party sense, it is very seldom politics of that kind intrudes itself into the work of a local authority. The local authority is a business concern, and it operates, generally speaking, through committees.

I can talk about the Dublin Corporation with some knowledge and experience because I am a member of it myself and I am a member of all its vital committees and of a number of other committees attached to it which are not considered of such importance. In every one of those committees the work of the corporation is done in a businesslike way behind closed doors and there is no question of any publicity for the work of individuals. There is given at the end by one of the officers of the corporation to the Press a synopsis or short statement of what has in fact occurred and what has been decided by the committee. Therefore, I feel that in considering this matter in regard to local authorities and Reserve officers being members of local authorities perhaps the drafters of the section, being somewhat removed from the actualities of membership of a local authority, may have been inclined to get a completely wrong conception of what such membership means. I must say that taking local authorities all over the country by and large very valuable public work is done by their members in a businesslike way and entirely apart from what might be considered to be Party politics in a very narrow sense. One may have politics of a type such as, if one could call it politics, the views of a section that believes in giving increased wages, and you may have the views of a section of people who think that it is unwise to grant increased wages in certain circumstances.

The Deputy seems to be discussing local authorities and the operations of county councils. It does not arise on this amendment.

I do not think that anything else arises on the amendment because the whole amendment is, that the section is designed to prohibit members of local authorities from participating in the work of local authorities in certain circumstances, and what I am trying to do is to ascertain in so far as I can what is, in fact, behind the prohibition of membership of a local authority by members of the Reserve in certain circumstances, and I want to establish if I can to the Dáil that membership of a local authority could not possibly be interpreted as membership of an organisation that could be considered as detrimental to the best interests of the State. I think that that is the approach that ought to be made in regard to the problems that are in this section and that are raised by the amendment I put down and the other amendments the Minister has put down to meet the wishes of the committee when they discussed this matter.

If a vocational education committee is concerned with technical education and the provision of facilities for boys and girls and men and women to improve their education after they leave the primary schools, I want to ask the House how could membership of that possibly be prohibited to an officer of the Reserve while he is out on permanent service, which as we all know might only last a very short time. If he attends a meeting, what proper grounds could be advanced for dismissing him from that vocational education committee during the time the Reserve is called on permanent service and while he might be on leave or absent from his unit with proper permission?

I do not know very much about committees of agriculture or what exactly they do, but reading about them in the Press they seem to be concerned mainly with the development of matters relating to agriculture in their own areas, and if there is an officer of the Reserve a member of a committee of agriculture, perhaps one of the outstanding members of it, with extra knowledge in regard to the problems they discuss——

Major de Valera

Is not the obvious answer that he is a whole-time member of the Defence Forces? He cannot be full-time on both.

No. Why should he be dismissed if he attends it? A member of the Reserve is, theoretically, on whole-time duty. I want that to be understood. But he is not on duty for 24 hours of every day. He is entitled to his periods of off duty. He is entitled to go to the cinema, to go to a dance. If he is a member of a football club he is entitled to attend a meeting of the club. If he is a member of the governing body of one of our athletic associations he is entitled to attend a meeting of that. If he happens to be a member of the governing body of the G.A.A. he is entitled to attend meetings of that body, and similarly if he is a member of the governing body of the soccer association or the boxing association. Why can he be free to attend any of those activities, all of them of an educational nature, and at the same time be prohibited from attending a meeting of a vocational education committee in dealing with the higher education of adults? That is the point that I want to make in regard to that, that the restriction imposed here does not appear to be reasonable.

I have only taken two committees, the committee of agriculture and the vocational education committee, because they are particularly specified in the Act as being additional to local authorities as prescribed in the Local Government Acts of 1925 to 1946. But there are other committees such as the committee of a mental hospital. Deputy Major Vivion de Valera put a point to me that he cannot be full time on both duties. Obviously if an officer of the Reserve of Officers is on military duty and is not free to attend a meeting of a vocational education committee or a committee of agriculture he cannot attend their meetings; but if he is free for an afternoon or for an evening or for a day why should he be put out, because that is the word, of the local authority because he attends it? If I could find a basis of reason behind this I might take a different view. As I understand the basis of reasoning behind this, this is what we had in connection with the discussion on politics. Politics has many meanings. It is the Minister's idea to prohibit participation in politics of a particular type but not to prohibit participation in politics of another type. The same thing arises here: once one begins to make a hole in the dyke that hole will continue to grow bigger. That is our trouble here; once we started to make the hole in the dyke of citizenship, we have continued to enlarge that until it tends to become a dangerous inroad on citizenship.

I think the Minister, on examination of these two particular points of view, will agree that perhaps he can delete sub-section 3 (a) and (b) or, at least, amend sub-section (a) and delete sub-section 3 (b), making similar amendments in relation to his own proposed amendment.

I can see no reason why an officer of the Reserve, or a man, cannot be a member of a local authority during the period when he is on permanent service. I can see no reason why, if he is free from his military duties, he cannot attend meetings of a local authority. I can see that such attendance provides no interference with his position as a citizen or an Army officer. I think we are taking the wrong view in relation to the Reserve, in relation to membership of that body, its liabilities and responsibilities, when we get down to the limitations of the two sub-sections to which I refer.

Those are the reasons why I object to these provisions. I appeal to the Minister to say that he agrees with the views that have been expressed and that he will at the proper time introduce amendments which will have the effect of leaving the section in such a way that it cannot be subjected to the criticisms I have advanced against it. All the criticism I have made here is directed towards the interest of the Bill and towards the interests of the Defence Forces. I do not want our Defence Forces to be a professional body entirely segregated from the rest of our people and completely separated from the ordinary functions of citizenship. In all the sections of this measure that we have discussed up to the present it seems to be the desire to establish a professional body of military personnel who, while wearing the uniform, will not be permitted to participate in any other activity. It is to that endeavour to make the Reserve similar to the Regular Army that I strongly object.

There is much to be said for the amendment of this section in the way in which Deputy Cowan proposes it should be amended. I agree that we should not give ourselves power to decide in a Bill relating to the Defence Forces or the Army the question of membership of Parliament, local authorities or anything else. That is a section for which I have no great affection. It would be reasonable to provide that if the individual attended a meeting of the committee he would be dismissed out of the Army, but I do not think that we have power to dismiss a person out of a local authority because that would look as if the Army is seeking to exercise authority over a civil body which is not subject to military law except in the case where a Proclamation is issued and a state of emergency declared. The suppression of even one person out of a local authority is equivalent to the suppression of the lot. I think the Minister should delete that provision relating to the disqualification of a member of the Reserve who attends a meeting of a local authority of which he also happens to be a member. I do not think the deletion of that provision would hurt the Bill. As Deputy Cowan has pointed out, a member of the permanent forces cannot be a member of a local authority. If he is a member prior to joining the Army the fact of his joining the Permanent Defence Forces is tantamount to his having surrendered his right or resigned from the other body. It is reasonable that he should sever his connection with the local authority but, on the other hand, if he is a member of the Permanent Defence Forces, becomes a member of the Reserve and then a member of a local authority, I cannot see why, if he is called out on permanent service and attends a meeting of the local authority, the punishment should be that he is dismissed from the local authority. I think we are going a bit too far in that. I suggest the Minister should reconsider the matter. To bring it further, if such an individual attends a meeting of a vocational committee or an old-age pensions committee—a very benevolent type of work—the penalty is dismissal from the committee. I suggest the Minister should delete that sub-section altogether.

I disagree with Deputy Cowan and Deputy MacEoin. I have had 30 years uninterrupted membership of, and association with, public bodies and I have been during all that period, except latterly, a member of various committees. I think it would be very injudicious not to have this provision; if the other position obtained it might have a very deleterious effect upon the position of an officer. It was different some years ago when members of public bodies belonged to no particular Party. The standard of administration then was much more efficient than it is to-day. Public bodies have now admitted into their various committees a definite and distinct dividing line as between Party and Party. An atmosphere of politics has been introduced into administration.

From time to time these various committees have at their disposal certain positions. Prospective candidates may be related to members of the committee and, sometimes, while one may not have a precisely acrimonious debate one will have a very heated and animated discussion. Consider the position of an officer in such circumstances. Is that the kind of atmosphere in which one would like to see an officer on permanent service in the Army? Remember, he will have to return to his ordinary duty as an officer with men under him; and the possibility is that these men may have friends or relations looking for the particular positions about which the committees have a divergence of opinion and around which bitter controversy may arise and very often encounters take place of which one could not approve.

I think myself that the decision to preclude officers from taking part in such committees and public bodies, in which I am sorry to say politics play a very significant part in the selection of individuals to fill various appointments, such as agricultural instructors, itinerant instructors, domestic economy teachers et cetera, is a proper one. I feel that we should preserve that immunity, that dignity and that strange isolated philosophy which is characteristic of officers, and that if you throw them into the vortex of these local squabbles which occur from time to time it will not exalt the position of the officers. I would regret very much that the Minister should depart from the policy adopted, which I think is the right and proper one, rather than to throw officers into the squabbles, disputations, annoyances and often, as I said, acrimonious debates which are not always finished in the chamber where the appointments are made. I think that the discipline which an officer is expected to maintain can be better maintained by immunity from all local squabbles.

The substance of what Deputy Cowan has said with regard to this amendment has already been said on the amendment which just preceded it. I think it is just a repetition of what has already been discussed on that other amendment. I am sure that Deputy Cowan knows as well as I do that there is already a section in the 1923 Act which is very similar to this particular section.

Which section?

I think it is Section 142. All we are doing in this is to ensure that if a reservist is called up for permanent service he will not remain an active member of a local authority, but that he will retain his membership. I think we are going a long way in ensuring that, so that in future a man who is a member of a local authority and who is a reservist and is called out on permanent service will not have to risk his position on that local authority. He will retain it and can resume whenever his period of service is completed. From that point of view, I think we are going a considerable way to ensure that such a man will not be victimised in any sense, that he can return to his county council or urban council or corporation activities when he is eventually released from service.

Then there is the other aspect which I mentioned in the course of the discussion at the Special Committee and which would play a very large part in regard to this whole question. When these men are called out on permanent service they are as much on permanent service as the men of the regular forces. What I want to point out is that when they are called up they may be sent to any part of the country far removed from the councils of which they happen to be members. That is another aspect of the matter which I mention to show that we are discussing this largely on theoretical lines.

I think the very best case that has been made for the retention of this was that made by Deputy Cowan himself when he admitted that I had gone a very long way to meet the views of himself and the other members of the Special Committee in regard to this matter. If you examine my amendment No. 65 you will find that I have gone a very considerable way to meet the wishes expressed at that committee. I could not possibly accept this amendment.

I did say and I do say that the Minister did go a long distance to meet the views of the Special Committee and, when that occurs, I am always anxious to acknowledge the fact. I want to deal with a couple of other matters because it is important in a case like this that the records should be perfectly correct. I want to put Deputy Madden right as early as I can. Deputy Madden has expressed points of view which undoubtedly are proper in regard to the Permanent Army, but I want Deputy Madden to realise that what we are discussing at the moment, and to which I am taking objection, is not the matter of the Permanent Army but the matter of the Reserve. Deputy Madden has had a long period of service as a member of a local authority. If 30 or 40 years ago when he was very young and active, we had self-government and our own defence forces I am perfectly certain that he would have been one of the local officers of the Reserve. If, in addition to being a local officer of the Reserve, he was representing his area on the county council and if he was called away for a month, two months or three months on permanent service, I feel that he would consider he had a great grievance, and properly so, if because during that period, when he was free from duty, he attended a local authority meeting just to carry out the ordinary business of the meeting he incurred disqualification.

That is the objection there is to this section. A person who is a member of a local authority and a member of the Reserve as an officer might be called up for training, which might be for permanent service, for a period which might be a day or which might be six years. As the Minister says, he may be sent to any part of the country and it is very seldom he will have the opportunity of attending meetings of the local authority. But if he did attend and engage in the ordinary activities of the council at the meeting, I think Deputy Madden would feel that it would be a very grievous thing to dismiss that man from the Reserve and from the local authority.

I had in mind a member of the Permanent Force.

I understand that, and I think we are all agreed that a man who is in the Permanent Force has enough to do to look after his own business without engaging in local activities and should not be there. I think Deputy Madden, therefore, is in agreement with the views I hold and with the views held by Deputy MacEoin in regard to this matter.

Deputy MacEoin did raise a very important point in regard to this which I think is worthy of consideration by the Minister. It means, as he says, that the Army is endeavouring to exercise authority over local authorities. A very interesting point arises there— in other words, that the Department of Defence or the Minister for Defence is to decide by Order who shall, or shall not, belong to a local authority. I think that Deputy MacEoin raised a very important matter when he mentioned that. Even if the Minister for Local Government attempted to interfere in an arbitrary way with a member of a local authority, there would very properly be an outcry. Members of local authorities cannot be dismissed except for reasons that are specifically laid down by statute. One reason I know is that on conviction of certain offences he can be dismissed and I think he ceases to belong to the local authority if he does not pay his rates. There may be other reasons but, broadly speaking, these are the reasons. Members of local authorities have a very wide protection just as members of the Dáil have a very wide protection. Once you allow the Department of Defence to exercise any authority whatsoever over membership of the local authority, there is very grave danger and I think it is the duty of Parliament to provide against that danger whenever Parliament gets the opportunity.

I agree with what Deputy MacEoin said, that if the Army is to exercise disciplinary power it should be exercised against an officer, as an officer, by saying: "Well, if you attend the local authority while on permanent service, you will be dismissed from the Reserve." Then there would not be the serious constitutional objection that there is to this section, which says: "If you attend a meeting of the local authority while you are on permanent service you will be dismissed from that local authority." I doubt the constitutionality of that. I think it is a power this House should never give to the Army, that is, power to exercise authority over the local authority.

Strange to say, this matter has arisen on a number of occasions when it was a question of an officer becoming a member of the Dáil and the decision was, not to dismiss him from the Dáil because that would be absolutely unconstitutional, but power was taken to dismiss him from the Reserve. There is where the serious aspect of this section arises. A local authority provides for representation in a democratic fashion after democratic election by the people and on general principles the Army should not be allowed to interfere in matters of that kind. That is why I am afraid that, in the wording of the section originally, a correct constitutional approach was not adopted.

The Minister mentioned that under Section 142 of the 1923 Act we had the same provision. The heading of Section 142 of the 1923 Act was: "Officers not to be sheriffs or mayors." It says: "An officer of the Forces on the active list within the meaning of any order for regulating the pay and promotion of the Forces shall not be capable of being nominated or elected to be sheriff of any county, borough or other place, or to be a mayor or an alderman of, or to hold any office in any municipal corporation in any city, borough, or place in Saorstát Éireann, or of being nominated or elected as a member of a county council."

In that old Act of 1923 there were two kinds of Forces. There was "the Forces" which means the Regular Army and there was the "Defence Forces" which means the Regular Army and the Reserve. That is the interpretation under the Act. It is very clear that you have two things— the "Forces" and the "Defence Forces" and the prohibition under Section 142 was a prohibition of an officer of the Regular Army being capable of being appointed a sheriff or being appointed a member of a county council, in the way I have read out. There was no limitation, good, bad or indifferent, in that in regard to the Reserve. It is in regard to the Reserve that the whole discussion takes places. Now while Section 142 bears out what Deputy Madden has said as applying to the Regular Army it does not affect the Reserve officer or the reservist as this does.

Is it not true to say that when a reservist is called out on permanent service he becomes a member of the active Forces?

When he is called out on active service?

No. That is an interesting point. An officer of the Reserve never becomes an officer of the Forces whether he is on permanent service or not. If the Minister would look at the Act, he would see that you have an officer who is an officer of the Permanent Forces, that is, a regular officer, who always remains a regular officer, but if he is an officer of the Reserve, even though he is called out on permanent service, he is still an officer of the Reserve. As the Minister knows there are two separate and distinct commissions—one for the officer of the Regular Forces and one for the officer of the Reserve. The Minister will remember a very interesting discussion we had in committee and which we shall probably have again on this Bill when we come to it. That is on the section which provides that where an officer of the Reserve is appointed to the Regular Army, he must resign his Reserve commission and get a new commission in the Regular Army. I admit it is a technical distinction but it is a very important distinction, and it is there all the time. While generally speaking, people will say that when he is called on permanent service, an officer of the Reserve is just the same as a regular officer, he is not. If he were to be court-martialled he would be called "Captain So-and-so, an officer of the Reserve on permanent service." It is because he is an officer on Reserve on permanent service that he has liability to martial law.

Surely the distinction is really based on finance, is it not?

The distinction is there on the basis of finance. The distinction is really on the basis of liability to military law. That is the important thing, but there is the second consideration on finance.

Mr. Collins

He would be afraid he might get a pension.

You are not paid as much for being an officer on the Reserve on permanent service as if you were an officer all the time. We come up against that all the time, in respect of marriage allowances and other allowances where an officer on permanent services was given the same allowances as an officer on the Regular Defence Forces. I would like to say in regard to that that the Minister over the period of the Reserve did a considerable amount to improve the regulations relating to allowances and pay of officers of the Reserve on permanent service.

There is a very wide difference of view between the Minister and General MacEoin and myself. We have expressed ourselves in regard to that section, and what I have asked the Minister to do in the light of the discussion we have had here is to introduce, when the Bill comes before the Seanad, an amendment which would remove even the appearance of the Army exercising jurisdiction over local authorities. My personal view is that if the Minister were advised by a constitutional lawyer in regard to this matter he would be advised that the part of the section objected to now would be undesirable and should be removed.

My objection to that course is that I cannot see this Bill ever getting to the Seanad at the present rate of progress.

We are making rapid progress, I think. We have done very well this evening. When we are all in good humour we can make progress. My only problem—I have stated it several times—is that there is one very obnoxious section which was put in after five days' discussion on it and if that was not in we might have been able to free-wheel a little easier.

Question—"That the section proposed to be deleted stand"—put and declared carried.

I move amendment No. 62:—

In page 53, Section 104 (1) (b), line 49, to insert "continuously" after "employed".

Its purpose is to add the word "continuously" so so as to make it clear that the section applies to a Reserve officer only when he is continuously employed on military duties during an emergency. I think the matter is fairly clear and that the word "continuously" means that he must be out all the time.

The amendment is only for the purpose of clarification.

It is more than that.

That is the main purpose.

Amendment agreed to.

I move amendment No. 64:—

In page 54, Section 104, sub-section (3), paragraph (a), line 11, to delete "or being".

Its purpose is to delete the words "or being" in sub-section (3), paragraph (a) and is rendered necessary by the new paragraph (3) (b) which I am proposing to insert by amendment No. 65.

Could we take the discussion on amendments Nos. 64 and 65 together?

Yes, that would be the simpler way.

I think we will get rid of amendment No. 64 first. The Minister remembers the putting in of the words and the taking out of them? These two words, so far as I remember, were put in in Committee after a little bit of objection and I am glad to see them going out again. I think that is so?

Amendment agreed to.

I move amendment No. 65:-

In page 54, to delete Section 104 (3) (b), lines 12 to 15, and substitute the following:—

(b) The following provisions shall apply to a member of the Reserve Defence Force who is for the time being a member of a local authority—

(i) he shall not, during any period during which he is actively employed, act as a member of that local authority and if he does he shall thereupon cease to be a member of that local authority.

(ii) notwithstanding anything contained in any enactment relating to local authorities, he shall not by reason only of his absence from meetings of that local authority during such period be disqualified or vacate his office as a member of that local authority.

In this case I had to secure the agreement of the Minister for Local Government. Deputies will remember in the course of the discussions in the Special Committee I mentioned that that course would be necessary and I am glad to be able to say that I have secured the agreement of the Minister for Local Government and the other Ministers concerned. The effect of this is that a member of the Reserve who is also a member of a local authority and who is called out on permanent service will be able to retain his membership of the local authority for the current period of office without, however, being able to participate in its activities. I think that meets the view expressed in the course of the discussions in the Special Committee and it is practically covered by the discussions which have just proceeded on the other amendment.

It is consequential on amendment No. 64?

It is not entirely consequential, but I think we have discussed the bones of it, which I think would be the vital part of the frame.

It is fairly germane to amendment No. 64?

Yes. The only thing I would like to say in regard to amendment No. 64 is that the Minister was requested by the Special Committee to discuss this matter with the Minister for Local Government and the other Ministers concerned and he tells us he has done that and that they have agreed on the provisions of this amendment. This is to some extent repetition, but I think it is necessary to repeat it for the purposes of the record and for the purposes of consideration. The principle in this has been determined on amendment No. 63. That being so——

Amendment No. 65 seems a bit cumbersome.

It does, but while the Ministers concerned have agreed to the section, I would like the Minister before the Bill goes to the Seanad to discuss with the Attorney-General the constitutional aspect of sub-paragraph (b) (1):-

"he shall not, during any period during which he is actively employed, act as a member of that local authority and if he does he shall thereupon cease to be a member of that local authority,"

I am raising that on the point General MacEoin made this evening about the danger of the Army controlling local authorities.

I have very serious doubts about its constitutionality.

Yes. I would ask the Minister to consult with the Attorney-General as to the constitutionality of that particular provision. I said on the preceding section that a constitutional lawyer would take the view that the one thing that must be provided against is the Army exercising authority over the civilian population or exercising authority, as in this case, over a local elected body which is part of the machinery of government. If the Minister consults the Attorney-General and if the Attorney-General advises him that it is perfectly constitutional, then it remains in that state until somebody questions its constitutionality. Where you have this provision to decide who will or who will not be a member of a local authority, I do not think that should be passed by the Dáil and Seanad without the specific point as to its constitutionality being raised with the law adviser to the Government.

While I oppose this amendment, as I must, because it provides something to which I have taken objection in the discussion on the previous section, I know it will be passed but I am anxious to have that safeguard that it will be considered by the Attorney-General from the aspect of its constitutionality.

Quite possibly Deputy Cowan has done a service in relation to this particular sub-section. I do not set myself up to contend with the opinion of the Attorney-General on the question of its constitutionality but,prima facie, it does not appear to me to be constitutional. It seems to assume that a member of the Reserve of Officers, embarking on what is a perfectly lawful act, would by virtue of that suffer a penal consequence, namely, forfeiture of his right as a member of a local authority. From a purely legal point of view I should imagine that the performance of his duties as a member of a local authority could not, by virtue of any statutory provision, disqualify him from being a member of that local body.

Which Act—the Act under which the local authority becomes an effective machine of administration or the Defence Forces Act—will carry precedence in the interpretation of statutes as distinct from the constitutional issue? Glib as the words of these few lines may be, they endeavour to circumvent what might be a very highly technical and dangerous constitutional situation.

I did not intervene at an earlier stage because I am hoping that somewhere, in this steam-rolling of an Act through the Dáil, there will be recourse to reasonable common sense. While a case can be made for certain exemptions in relation to politics, in this particular sub-section you are running into a conflict on basic ideology, apart altogether from the clash of defence force against local authority.

The Defence Force regulations envisage attraction to the Defence Forces of young men of the highest possible standard and quality. We accept that reservists will be men who have given a reasonable amount of service in the permanent Force, who, at a later age have gone into some other avocation. In a niggardly and un-Irish way, we are trying to limit the contribution that such men can make to local administration.

I find myself in a very serious difficulty in relation to this part of the Bill. I become rather impatient at the mentality that inserts unnecessary safeguards and unreasonable restrictions that would seem to imply some innate weakness in ourselves or some inherent irresponsibility in our people generally. It is that concept that becomes anagitans irritans where I am concerned.

I do not wish to delay the progress of this measure but, candidly, I am becoming rather impatient of this warped mentality—I put it no further than that—that is behind some of these sections. We have grown up as a nation. We have discharged responsibilities as an army and safeguards such as this might best be described as puerile.

Deputy Collins described this Bill as being steam-rolled through the Dáil. The only relationship I can see to the steam-roller is the speed with which it is moving.

I thought that was what the Deputy had in mind.

Of course, it was

This Bill was introduced in 1951 and we are still on Report Stage.

I think the Minister is taking me out of the context in which I spoke. We are still steam-rolling at the normal pace, steam-rolling that involves the elimination of every amendment.

How can the Deputy say that there is steam-rolling in view of the fact that there are 103 ministerial amendments?

Might I say this to the Minister that a tremendous number of them are drafting amendments, and a tremendous number consequential as a result of agreement in Committee.

I have not gone into the statistics of the matter or tried to find out how many of these ministerial amendments are intended to meet the wishes expressed at the Special Committee by members.

I would agree that a considerable number of them go a long way in that direction.

I would say that the majority of them are intended to meet the wishes expressed by the members at the Special Committee. If Deputy Collins uses the expression "steam-rolling" and suggests that we are bulldozing our way, so to speak, with this Bill through the Dáil, I say that that expression of his does not apply.

That is not the context in which I used it. I should not have even used the expression steam-rolling. I should have described it as a kind of impervious blanket wall of opposition.

The suggestion has been made that we are taking power that only local authorities are entitled to take. We are not doing any such thing. The powers which we are taking in this Bill are powers to provide us with the means by which we are to govern the members of the Defence Forces. If we say that a man will be disqualified for deliberately refusing to obey the regulations or the rules which we operate for enforcing discipline, then there must be some punishment.

If the Minister reads the last part of sub-section (1) he will see that the person concerned shall cease thereupon not to be a member of the Army but to be a member of the local authority.

That is the penalty inflicted by the Army on the individual for contempt of the regulation which governs his attitude.

On the point that is at issue, can the Minister explain to me why the Army chooses to make its penalty one of a civilian nature rather than one within the Army code?

I am a layman arguing with two lawyers.

We are arguing as people interested in the Army.

I am arguing with two lawyers, with men of experience, who read into these things their own views, but what I am pointing out are the views also of experienced lawyers, experienced draftsmen in the Attorney-General's office. The point that I want to make is that if there is only a suspicion of a challenge to the constitutional rights of the people contained in the section, I intend to have that examined by the highest legal authority that we can procure. I will do so in order to ensure that, as far as I am concerned, there will be nothing put into this Bill which in any way challenges the constitutional rights of the people.

May I ask a question which is based really on what the Minister has said? I admit that I should have raised it earlier. This Bill in its Long Title is "An Act to make further and better provision in relation to the defence of the State and the Defence Forces and to make provision for other matters connected with or incidental to the matters aforesaid." The amendment which the Minister has before the House is an amendment to deal with Local Government law. I am asking the Chair to rule as to whether the amendment is in fact a proper amendment in relation to the title of the Bill?

The fact that it appears on the amendment sheet is an indication of the Ceann Comhairle's attitude towards it.

I only wanted to put that point to the Chair. It seems to me to be outside the scope of the Act.

Amendment put and declared carried.

I move amendment No. 66:—

In page 55, to delete section 108, lines 11 to 34.

Debate adjourned.