Defence Bill, 1951—Report Stage (Resumed).

Debate resumed on amendment No. 66:—
In page 55, to delete Section 108, lines 11 to 34.—(Minister for Defence.)

With your permission, Sir, I suggest that amendments Nos. 66, 69 and 70 be taken together so as to keep the sections in their proper sequence. The present Section 108 will be deleted by amendment No. 66 and will be replaced by the two new separate sections proposed by amendments Nos. 69 and 70. Instead of moving my amendment No. 67, which would have deleted Section 109, I now propose to accept Deputy Cowan's amendment No. 68, which proposes to retain a new version of that section. The two new sections proposed by amendments Nos. 69 and 70 should, therefore, come before Section 109 and not before Section 110 as stated in the printed form of these amendments.

The purpose of amendment No. 66 is to delete Section 108 as it stands at present. After discussion with the legal authorities, I am accepting the proposal made in the Special Committee that provision for dual trials should be deleted. Consequently, sub-sections (1) and (2) of Section 108 go. The position regarding sub-sections (3), (4) and (5) is dealt with in my later amendments Nos. 69 and 70. I think that will put them more or less in proper sequence.

Amendment put and agreed to.
Amendment No. 67 not moved.

I move amendment No. 68:—

In page 55 to delete Section 109, lines 35 to 41, and substitute the following:—

Where a member of the Defence Forces is convicted or acquitted by a court-martial of an offence such person shall not be liable to be tried subsequently by a civil court for that offence.

Amendment put and agreed to.

I move amendment No. 69:—

In page 55, before Section 110, to insert a new section as follows:—

A man of the Permanent Defence Force or a reservist, during any period during which he is called out on permanent service, shall not be liable to be prosecuted or punished for any offence under Section 83 of the Public Assistance Act, 1939 (No. 27 of 1939).

Amendment put and agreed to.

I move amendment No. 70:—

In page 55, to insert before Section 110, a new section as follows:—

(1) If any officer wilfully neglects or refuses on lawful application to deliver over to a member of the Garda Síochána or wilfully obstructs or wilfully neglects or refuses to assist a member of the Garda Síochána in lawfully apprehending, any member of the Defence Forces under his command who is accused or convicted of an offence, other than a man accused of an offence under Section 83 of the Public Assistance Act, 1939 (No. 27 of 1939), such officer shall be guilty of a misdemeanour and shall be liable on conviction thereof to imprisonment for any term not exceeding two years.

(2) Where an officer is convicted of an offence under sub-section (1) of this section, the court before which he was convicted shall cause a certificate of the judgment of the court to be sent to the Minister.

This amendment inserts sub-sections (4) and (5) of the previous Section 108 as a new section. It will be noted that, following remarks made at the Special Committee, the wording has been amplified so as to make it clear that an application by the Garda Síochána for the surrender of a member of the Defence Forces must be lawfully made and that any neglect to hand over a man must be wilful. That being so, I have not adopted the suggestion that provision should be made for a fine as an alternative to imprisonment. Before the amended section operates the offence will clearly have to be a most serious one.

Although it has been improved since the original draft came before us I can see no reason for the section at all. A nice point arises in the delivering over to a member of the Garda Síochána of a soldier or an officer or any member of the Defence Forces. It suggests some proprietorship. In other words, if the Guards want to arrest an officer or a soldier lawfully for any purpose, obviously they are entitled to arrest that person and anyone who obstructs a Garda in the exercise of his duties, whether it is in the Army or outside the Army, can be charged with an offence and brought before a court. One of my grounds of objection to the section, although it has been modified considerably, is that it makes a special law applicable to officers of the Defence Forces.

I think we have reached the stage when every officer in the Army understands now and will in the future, notwithstanding some of the provisions of the Act, that the civil law is paramount and that if a Garda lawfully wants to apprehend a soldier or an officer, no officer has the right to obstruct him in the exercise of that duty. Certainly, if he does he will be liable to be proceeded against and on proper evidence to be convicted. What I do not like is the singling out of the officer for the application of a special law against him for an offence that is, in fact, an offence under the ordinary law of the country as it stands. The delivering over suggests that it might be the duty of an officer to take a person, even by force, and hand him over to the Garda authorities.

I can see that if a soldier is in custody in the Army and the Garda authorities have a charge against him and they require to take him into custody lawfully, in those circumstances he should be handed over from custody to the Garda authorities, but if he is not in custody but simply round about his ordinary duties, the Garda authorities can go in and say to an officer: "We require you to apprehend or otherwise take into custody or get control of an officer or a soldier and hand him over to us."

I feel that, perhaps, the Minister might reconsider the delivering over part of it. That should go out. It is a new section that reinforces, as it were, the ordinary law and in my view it is not necessary at all. I do not think it will cause a lot of trouble anyway, but it is another instance of what we have in the Bill in a number of places—this thing of making a special law dealing with officers, where the ordinary law of the country, in fact, applies.

In regard to the ordinary law, as the House knows, anybody who obstructs a Garda in the lawful exercise of his duty can be brought to trial. "Wilfully neglects," which is now put in, was put in to strengthen the section because it could be that an officer who neglected to assist a member of the Garda could be brought before a jury and convicted of an offence and sentenced to a term not exceeding two years.

There are other provisions in the Act whereby the officer in the circumstances would be subject to military law and could be charged with an offence. I must say that as far as that section is concerned and while I agree that the Minister has substantially modified it from the time of the Special Committee, I do not think there is any necessity for it at all.

I should like to say that that is put in almost in the form in which it appeared at the Special Committee.

I know. I accept that.

Question put and agreed to.

I move amendment No. 71:—

In page 57, Section 113 (1), line 4, before "he" to insert "or by any decision of the Minister".

Amendments Nos. 71 and 72 could be discussed together. They seem to be cognate.

I will deal with both together.

I would suggest that.

I will take the first one first for convenience sake.

This is a vital section affecting the Army. It is the section that deals with redress of wrongs and from the point of view of the officer and the soldier it is important that there should be some provision whereby, if he feels himself wronged, he will have the right to seek redress. The old Act was defective in regard to this point because it made provision that a soldier who felt himself wronged by any officer or soldier could complain to his captain and if he felt himself wronged by his captain he could complain to his commanding officer and he could eventually complain to superior authority in regard to it.

But many complaints of officers and soldiers are related not so much to discipline in which their captain, commanding officer or officer is involved as to matters of pay and allowances and stoppages from pay and allowances which are matters, as I say, in regard to which no military officer has any responsibility. Where he sought to avail himself of the redress of wrongs section he found he was out of court because of the wording of the section, which limited the complaint to complaints against the actions of his superior authorities in the Army. Of course, as I said on other sections, that arose from the old British Army Acts, which dated from the time when everything in regard to pay, allowances, discipline and everything else was dealt with by his superior authority. Most of the complaints had to do with the decisions that were taken by the finance authorities, by the civil authorities in the Department of Defence, for which the Minister himself is technically and, I suppose, officially responsible.

In the amendment which I provide here I want, if I can, to ensure that an officer or a soldier will have the right of complaint, not only against his commanding officer or his superior authorities, but against the civilian sections that deal with pay and allowances by inserting in sub-section (1) the words which I propose in amendment No. 71, "or by any decision of the Minister". If this sub-section were amended in the way I propose it would read:—

"If an officer thinks himself wronged in any matter by any superior or any officer, including his commanding officer, or by any decision of the Minister, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer's satisfaction, he may complain in the prescribed manner to the Minister, who shall inquire into the complaint and give his directions thereon."

I am surprised that the Minister does not say right away that he agrees to that amendment because I think it is the vital matter of the whole section. I do not want to go back upon it, but we have dealt with it under the sections dealing with pay; we have dealt with it in the discussion on the sub-section which gave the Minister in the old Act the right to make deductions from the pay of an officer without judicial investigation or as a result of an accident or negligence or some other matter of that kind. I feel that the section will not cover this whole matter of complaint adequately unless some provision such as I suggest is put into it. If a soldier considered that his pay was being improperly deducted by order of the Minister or that certain allowances that he thought he was entitled to were not given to him by order of the Minister, which in effect means by order of the section in the Department of Defence which deals with pay, I think it would be agreed by the House that he should have the right to complain to the Minister, if needs be, in regard to that. That can be done if the amendment which I suggest is accepted.

It is significant that since the last war in most armies, even those in countries that have been used to having conscript armies, very wide powers of complaint are given to officers and soldiers and very strict rules are laid down obliging the responsible authorities to investigate those complaints and to rectify them. I noticed the other day in regard to the new German Army which is being established that provision is being made in the law governing that army giving very wide powers of complaint and very wide rights in regard to the redress of grievances. I noticed, too, a thing which unfortunately we have not been able to get into this Bill so far, that provision is made for the right of a soldier or an officer to appeal against a decision of a courtmartial, a matter which has been dealt with in the British Army for a number of years.

An appeal to the civil court?

Yes, to the Court of Criminal Appeal. I am only touching on that at the moment as I will have to deal with it subsequently on another section. Those rights have been granted to soldiers in the new armies which are being built up since the war. We should appreciate that here and realise that if there is a continuous and continual grumble in the Defence Forces with regard to matters of pay deductions and pay stoppages any officer or soldier who feels himself aggrieved should have the right of appeal to the Minister. Unfortunately, he is not given that right of appeal in this section.

In regard to disciplinary matters it is very seldom that one has grounds of complaint which need to be investigated. I have myself noticed from time to time complaints in regard to non-promotion in the case of officers where officers felt that they were entitled to be promoted because of their service, experience and ability. If they are passed over they have always felt that they should have a right to complain about the fact that they were not promoted or were passed over. Under the old Act where an officer made a complaint of that nature he was told that the Act did not cover that complaint. I should like to ask the House what greater ground of complaint could there be than the ground that he was not promoted when he should have been promoted?

If the amendment I suggest is put into this sub-section an officer who is not promoted and who feels he should have been promoted will have the right of complaint to the Minister, will have the right to have his grievance investigated, and the result of the investigation of the grievance may be to bring about his promotion.

A commanding officer has nothing to do with the promotion of an officer, nor can one say that any officer has official responsibility in regard to the promotion of another officer. An officer cannot promote another officer. Recommendations are received from superior authorities, all the way up to the military members of the Defence Council, of which the Minister is chairman. The Defence Council considers the recommendations and decides whether there should be promotion or not. In all cases, the Minister accepts the decision of the Defence Council in that matter.

If, for any reason—and it has occurred not infrequently—a particular commanding officer has a grievance against a subordinate officer and does not recommend him for promotion, very grave injustice can be done to that officer. I am sure the House will agree with me that in circumstances such as that the officer should have the right to complain to the Minister and to say: "My case should have been considered. I understand I was not recommended by my commanding officer. My commanding officer did not recommend me because he has a special grievance against me. We have been in conflict on many matters over a long period. He is prejudiced against me." It is only right that that ground of appeal should be available to any officer in the Defence Forces. I am sure the Minister would be anxious that a grievance of that nature, where there was injustice, should come before him.

If the amendment is not made, under the Bill, an officer would have no right to make such complaint. If he did make it, he would be told very early on—perhaps by the commanding officer who would be prejudiced against him—that he had no right of complaint under the section; that his complaint was only in regard to promotion. The commanding officer could very properly say that he had no responsibility whatever in regard to promotion.

Sub-section (2) of Section 113 deals with complaints by soldiers. In amendment No. 72 I propose the insertion of additional words at line 17, to enlarge the sub-section. Sub-section (2) is as follows:—

"(2) If any man thinks himself wronged in any matter by any officer, other than his company commander, or by any man he may complain thereof to his company commander, and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General, who, if so required by the man, shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon."

The section, if amended, according to amendment No. 72, would read as follows:—

"(2) If any man thinks himself wronged in any matter by any officer, other than his company commander, or by any man he may complain thereof to his company commander, and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, or if he thinks himself wronged by any decision of a superior officer or of the Minister, he may complain thereof in the prescribed manner to the Adjutant-General, who, if so required by the man, shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon."

The words I propose to insert enlarge the machinery for redress of wrongs and give added rights to the soldier to complain. At the moment the section is limited. If he thinks himself wronged by an officer other than his company commander or by any man, he may complain to his company commander and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General. The rights that are given to a soldier to complain in this sub-section are very limited indeed.

The same point that I made in regard to the officer arises in regard to the soldier. If his pay is improperly stopped by order of the Finance section, if a deduction is made by order of the Minister, which he considers unjust, or if there are any other matters in which he feels he has been unjustly treated, the right of complaint is not given to him. The Minister should ensure in this Bill that the just complaint of an officer or a soldier cannot be smothered by the limiting provisions of this section. The section should be sufficiently wide to enable any just grievance or complaint to be investigated.

In armies all over the world, where young soldiers get together and grow up and are trained in a military atmosphere, they find grounds of complaint that the average citizen would not bother about. That is due to the strict discipline of the army, the conditions of barrack life, the fact that a soldier has a whole hierarchy of authorities over him. Every person in the army except a private has disciplinary powers over a private. The private is under the discipline of his corporal, his sergeant, his sergeant-major, his company quartermaster sergeant, his company sergeant, his battalion quartermaster sergeant and the whole line of officers from second lieutenant to general. He is subject to orders. If he goes to hospital he has an additional number of authorities who can order him about, from the nurses right up to the commanding officer of the hospital.

Living in that atmosphere the soldiers are particularly keen about their rights. They realise that they have adopted a new career, that they are subject to an all-embracing discipline and they are prepared to accept that control and that discipline but they insist on having against it some rights of their own. If at any stage any individual soldier feels that some injustice is done to him which annoys him it may on occasion lead to insubordination. If the wrong is done to two or more it may result, and quite often in the past has resulted in the very serious military crime or offence known as mutiny. The result is that from the experience of armies there has always been this outlet for steam, pent-up steam for the moment—the outlet of the right to complain. If that right of complaint is denied to an officer or a soldier it leaves a smothered grumbling, a smothered sense of grievance, that is very bad for discipline and for the force as a whole. That is why I think that whatever the Minister may say about widening or removing the limitations of the section, in the long run it is desirable to do so in the interests of discipline and in the interests of the Army as a whole.

I shall be very interested to know why the Minister would not agree to the removal of the restriction of the right of complaint that would be brought about if the two very simple amendments I suggest here were adopted. I think it right that the House should look at sub-sections (3) and (4) because although there is no proposal to amend, except in a very slight way, Section 113 to give effect to the proposals that are suggested here, I think it right that the House should look at the section because sub-section (3) says:—

"Every officer to whom a complaint is made in pursuance of this section".

Now again there is a limitation there. It is not "every officer to whom a complaint is made"; it must be "in pursuance and in accordance with the provisions of the section". The section goes on:—

"—shall cause such complaint to be inquired into and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of, and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of."

Are we dealing with that?

This is not the Committee Stage.

Why not leave that until we come to the amendment?

Very well.

If you agree we can take amendments Nos. 71, 72 and 73 together.

I think there is agreement.

You can take all together.

Agreed to discuss amendments Nos. 71, 72 and 73 together.

The section which I have been quoting goes on:—

"shall... take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of."

Then sub-section (4) states:—

"The Minister shall make regulations providing for the personal submission by any person subject to this Act of any grievance to such officer and on such occasions as may be prescribed by such regulations."

Now the proposed amendment No. 73 is to delete the words "officer to whom a complaint is made" and to substitute the words "person to whom a complaint is made or referred." The idea of that amendment, as will be clear to the House, is to provide that the Minister will be bound by law himself because he is a person. He is not an officer within the meaning of the Bill; he is a person to whom the complaint is made or referred, and this obliges the Minister to have the complaint examined into and redress given to the person who complained.

I had to speak at some little length on the section because, from the point of view of the officer and the soldier, it is an important section. If the right to make a complaint is not guaranteed to the officer and the soldier, then there is a danger of trouble ahead, and if the complaint is limited to what we have in the section here, the officer or the soldier who may make the complaint will be prevented from having that complaint investigated or inquired into. I think it is better that we should err on the other side, that if we are to err we should not err on the side of the limitation of the right to complain. We should err on the other side by giving the most extensive and widest power to the officer and the soldier.

It may be suggested that that power would be abused, that if the widening that I suggest in that amendment were effected, it would give rise to all kinds of unnecessary complaints—that it would cause an upset in headquarters, in the Minister's offices and to the different commanding officers right down the line. I do not think that is possible. One does find from time to time a particular type of individual who is always complaining and one can find that particular type of person in all walks of life. I had experience only a few days ago of a person employed by a very big State organisation who complained because he was dismissed. One of his grounds of complaint was that he did not get on well or at least that his dismissal was brought about by prejudice and that over a period of years he had been subjected to annoyance by his superiors, and he did not see the other side of it.

I hope we are not going to discuss this case.

I am not discussing it. In actual fact one could read into this man's story that his superiors had been particularly tolerant with him for a number of years.

In the Army, everybody knows that perhaps in a brigade—and now and again in a battalion—you will find a person of the complaining type, but 99 per cent. will only complain when they have what they consider just grounds for complaint. The old provision was not abused, but there were numerous cases of officers and soldiers who were denied redress because it was pointed out to them that the provisions of the section did not give them the right to complain. That arose in the matter of pay and allowances and in the matter of promotion. I think it is much better for us to err on the side of giving adequate right to complain and to bring forward grievances, and I would strongly urge the Minister to accept these amendments which I think will improve the section immensely and we will guarantee to every officer and soldier a right to complain right up to the Minister when he feels he has just grounds for complaint. We would also give the Minister the right to examine that complaint and if the grievance were well-founded, to redress it. I will press the Minister very strongly to accept those amendments.

The right of an officer, N.C.O. or man to appeal to have a wrong or grievance redressed is a very important one. I think the section as it stands preserves that right. When the officer finds he has a grievance, the section does lay down that when he complains in the prescribed manner to the Minister, and gets his complaint inquired into the Minister still comes in on it if the officer insists, and I presume that, under sub-section (4), when the Minister is making the regulations he will enable the officer, N.C.O. or man to come up with the complaint if it is necessary. I think it would not be good for the discipline of the Army if, no matter what a commanding officer said or did, he was always going to be met with the reply: I am going to appeal to the Minister. A certain amount of abuse is bound to arise.

I think the section as it stands gives the necessary protection and I would like to know from the Minister if he is himself satisfied that it does give the right for a complaint to come through to him if the necessity arises. I feel that in sub-section (2) the phrase—

"he may complain thereof to his commanding officer and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General who, if so required by the man, shall report on the matter of the complaint to the Minister."

In other words, the man has the right to get to the Minister if he demands it and I think that that in itself preserves the right of appeal to the Minister upon any grievance that a man may have. I would like to know from the Minister if he is satisfied that that right is preserved.

In the course of Deputy Cowan's speech he used the words "that there was no right to complain to the Minister". If he reads sub-section (1) of Section 113 he will see there that—

"if an officer thinks himself wronged in any matter by any superior or other officer, including his commanding officer, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer's satisfaction, he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon".

And the Minister in that case is compelled to inquire into it—"who shall inquire".

Yes, it is fully covered. The incongruity of what Deputy Cowan is suggesting is shown by this: he suggests that the section should read like this—if an officer thinks himself wronged in any matter by any superior or other officer, including his commanding officer, or by any decision of the Minister, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer's satisfaction, he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon.

We would then have the position where a Minister would be examining a complaint against himself. In other words, the commanding officer would have to send the complaint from the individual concerned about the Minister to the Minister. I think there is incongruity in that.

I think the same applies in respect of sub-section (2) which deals with the man and in the course of which it is stated—I will not read this long section, but I will read part of it just to give the idea—

"and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter or if he thinks himself wronged by any decision of a superior officer or of the Minister—that being the insertion—he may complain thereof in the prescribed manner to the Adjutant-General who if so required by the man shall report on the matter of the complaint to the Minister who shall inquire into the matter and give his directions thereon."

The Minister again examines a complaint against himself.

We all know, and we do not have to be students of psychology to know, that an individual when he has some grievance, however frivolous it may be, believes in it and makes the complaint to his officer. When the officer examining it comes to the conclusion that it is a frivolous complaint, he does not bother going any further. In order to show that that is not general, I want to point out to the House that I get numerous—and I am sure every other Minister for Defence had the same experience—complaints passed on to the Adjutant-General. The complaints were made to the commanding officer in the first instance and were, in due course, forwarded to the Adjutant-General. The Adjutant-General, I suppose, in some cases did not forward them to me, but I am talking about the large number that did come to me in my own experience. Other Ministers will have had similar experience. The complaints are then examined again and dealt with. I cannot see that the insertion of the words that the Deputy suggests is going to be helpful at all. It is going to encourage the sort of professional grouser.

He is generally thrown out, anyway.

You are widening the scope and officers would be spending the best part of their lives examining these frivolous complaints and would be very worried about dealing with them because they would know that they might go further.

There is another source of appeal which is not mentioned in the Bill but which, at the same time, is there. Deputy MacEoin probably knows as much about it as I do, though I do not know if Deputy Cowan, without ministerial experience, has the same information. The best source of appeal that I have ever come across is the wife of a soldier. We get complaints from soldiers. They report that they have made these complaints to their superior officers and that the superior officers turned them down. Then Mrs. Soldier sends in the complaint in all its details, and it reaches the Minister quickly.

With an amazing knowledge of military procedure, rules and regulations?

The main thing is that the complaint reaches the Minister with greater expedition than it could possibly reach him through any rules or regulations, standing orders of armies or anything else. I can say, speaking for myself, that I have never failed to take these matters up and, generally speaking, I have got reasonable answers from the people with whom I had to take them up.

Deputy Cowan also referred to the question of promotion. I can say that I have had numerous complaints from officers handed on by the Adjutant-General. It is a serious thing when an officer regards himself as not being justly treated in the matter of promotion. When the Adjutant-General gets a complaint of that kind he naturally brings it along to me to ensure that, as far as he is concerned anyway, he has done his duty. I then go into the case with the Adjutant-General. I have the Army seniority book at my elbow and can see from it if in fact the complaint of the individual is real or otherwise. I generally find that it is otherwise. Generally what I find is that while a man may be fourth, fifth or sixth and may be a long time in the Army, nevertheless there are three or four people in front of him. Where that situation exists the question of injustice cannot arise.

Deputy Cowan was reminiscing a little. I could do the same thing. As regards one of these examinations which I had to make there was a particular case that I came across. I found at the head of the list of lieutenants an officer who had been in the Army since 1922. He was still a lieutenant. It was only by the merest chance that I saw this. I was astounded to find that this man, who had been in the Army from 1922, was still a lieutenant. I immediately took up the matter, first with the secretary, and asked how that could be. I then took it up with the Chief of Staff. I was given various reasons which I am not going to mention now, but I insisted that the man, if he was going to be retained in the Army, was worthy of promotion after service extending over that period of years. In view of the fact that he had not been promoted I insisted there and then that his case should be given the most serious consideration, that is, as to whether the man should be retained in the Army or encouraged to retire while he had youth and ability to enable him to look for other work. The result, I am glad to say, was that the man was promoted.

I mention that to show to Deputy Cowan that these things which come up in the form of complaints are examined in a very serious manner, and that if we cannot at all times accede to the requests which are made, at least some of them will be corrected. Others of them may not be. I cannot see any reason at all for these amendments. The object of amendment No. 73 is to substitute the words "person to whom a complaint is made or referred". That is merely going back again on the position that obtains in sub-sections (1) and (2). The person intended, of course, is the Minister. The remarks which I have made in regard to the other amendments also apply to this one. I think Deputy Cowan, on reflection, will agree with me when I say that I do not believe it would be possible to do anything in the nature of an injustice where you are dealing with genuine complaints. If we were to accept the amendments suggested by Deputy Cowan, it would mean opening a whole field to the type of professional grouser, and I am certain that even Deputy Cowan does not want to encourage that. Therefore, I have to say that I could not accept the amendments.

I find it very difficult to debate anything with the Minister because he immediately says: "Well, as far as I am concerned as Minister, nobody can have any complaint." I agree with that but, as I said on other sections, I am not concerned with the present Minister as far as this Bill is concerned. This is to be a permanent Act, and what I am concerned with is with what is written into it and as to what a Minister should do.

The one point which the Minister avoided, and which Deputy MacEoin also avoided, was the main purpose of the amendment. In other words, as far as an ordinary matter in connection with the Army is concerned, there is provision here for having it investigated, but there is no provision for investigating a complaint in regard to wrongful deduction from pay or wrongful interference with pay because the section is very clearly limited to things which were done wrong by an officer or by a soldier. There is nothing in the section to deal with that which is the great ground of complaint in the Army, namely, the decisions taken by the Finance Branch of the Department of Defence. When I mention the Minister in the amendment, it is necessary to do so, because even in discussions in this House one is not entitled to refer to civil servants, even though every decision of a civil servant in the Department of Defence is a decision by the Minister. That is so, even though the Minister never sees it and has nothing to do with it.

It is to provide for complaints against the wrong exercise of powers in the name of the Minister by the civilian branch, and particularly the pay section of the Department, that I want to make these amendments. I think that, if the Minister will examine this, he will find that the incongruity he mentioned is not, in fact, in this. Under the Act the Minister holds a special position. He is not just Mr. Oscar Traynor or any other named person. He is the Minister, and under the Act decisions are taken in the Minister's name that, obviously, never come before the Minister at all.

Where the pay section makes a wrong decision there ought to be the right of appeal to the Minister, who is the head of the Army, to investigate the position and give a decision. I cannot see that there is any incongruity in that. The incongruity arises from the fact that people in the ordinary way of administration exercise their powers in the name of the Minister. The Minister does not himself exercise these powers and that is why I put in the amendments. I think both the Minister and Deputy MacEoin will agree that a man should have the right to complain if a decision is taken in relation to his pay which he considers to be a wrong decision.

I agree with that.

If a decision in relation to his pay is taken by a civilian executive officer in the Department of Defence he should have the right to complain. In the section as it stands he has not the right to complain because he is not wronged by his superior or other officer, nor is he wronged by any man; man in this section means a non-commissioned officer or soldier.

The section says: "If any man thinks himself wronged" then he has the right to complain.

The right is limited. The section says:

"If any man thinks himself wronged in any matter by any superior or other officer, including his commanding officer, he may complain...."

Unless he thinks he is wronged, therefore, by an officer or soldier he has no right of complaint. That is what I am trying to put right in my amendment.

I asked the Minister was he satisfied that was the position.

The complaint must be against an officer or against a soldier.

That is because it is an officer or soldier who has to make the payment. Any complaint will come around in the ordinary way through the ordinary channels to the Adjutant-General.

This matter has been argued from time to time and it has always been laid down that where the complaint is a complaint in regard to pay there is no ground of complaint under that section. We all know that if an officer is paying, and the officer may not be the commanding officer, and the officer says: "I have to stop £1 from your pay this week. Those are the instructions from F.2 and I cannot do anything about it" obviously there is no right of complaint against that officer because he is merely carrying out instructions. When one comes to the officer, however, one is in a different category altogether.

Even in that case the operative clause is "if he thinks himself wronged"; he may not think himself wronged by that particular officer, but he still thinks himself wronged.

If he thinks himself wronged he may complain, but his commanding officer may say: "I have not wronged you." If in fact he gets to the Adjutant-General the Adjutant-General will tell him: "This complaint does not come within Section 113 (2)." That is my difficulty. The Adjutant-General and the other officers are bound by the provisions of that section. What the Adjutant-General would do, if he was in any doubt, would be to ask the deputy judge advocate-general whether the complaint comes within that section and the deputy judge advocate-general would have to say "No". The Adjutant-General is bound to administer the Defence Forces in accordance with the law laid down. He may, as the Minister may, feel there is something wrong and that the complainant has not been treated fairly. He may take other steps to investigate the matter, but he has no right to deal with it under the sub-section as it stands.

Consider the case of the officer which, I think, is more in point. The officer does not receive his pay from any military authority. His pay is sent out by draft from the civilian branch of the Department of Defence, in an envelope addressed to himself. Supposing £2 or £10 has been deducted from his pay, against what officer will the recipient of that draft have the right to complain? Against no officer, because no officer has anything to do with it good, bad or indifferent. That is why I want to amend this section by providing that where he has a complaint against the civilian branch of the Department of Defence he shall have the right to go to the Minister on that complaint.

Does the Deputy still insist despite sub-section (1) that that is the position?

Even though it specifically states there that the Minister shall inquire into the complaint and give a direction thereon?

Yes, because it may not reach the Minister. A lieutenant may have £5 stopped out of his pay cheque. He goes and sees his commanding officer and he asks him what he will do about it. He will be told he had better write to the section that sent him the money and take the matter up there. He cannot complain under Section 113 (1) because it is not his commanding officer, or any other officer, who has made this deduction. That deduction has been made under the Minister's name by a civilian branch of the Department of Defence. The section in its present form is a denial of the right to complain.

I deny that.

The Minister thinks that is not the interpretation?

The man has a legal entitlement to make a complaint to the Minister.

If the Minister says he will have the matter looked into by the deputy judge advocate-general, who is the Minister's legal adviser, I will be satisfied.

I have already done that. This matter was raised at the Special Committee and I promised I would do something about it. I can assure the Deputy that I have done so.

Is the Minister satisfied—this is Deputy MacEoin's point—that the section gives the right to an officer or soldier to complain even though it is not strictly within the wording of the section as it stands?

I can say that neither an officer nor a man needs any legal entitlement to make a complaint to the Minister. They can do so.

In other words that brings me back to the point I made at the beginning, that is that as far as the present Minister is concerned I am satisfied, but one has to look at it from the longer point of view. I have seen this section interpreted severely where an officer who was not promoted endeavoured to complain against the fact that he was not promoted and he got a very short letter telling him: "Your complaint does not arise under that sub-section." I have known not only one but several of such cases, and I think it would be interesting if the Minister could look up the number of complaints made to the Adjutant-General by officers who were told that their complaint did not come within the section. Perhaps it would be difficult to get that information, but I know of several cases myself and it was because I knew of them that I was anxious that there should be no loophole in this section. If the Minister would look into this and ensure that no other form of wording will give what he says is now the settled practice, that any complaint at all will reach the Adjutant-General and if necessary the Minister, I would be perfectly satisfied with that.

Without any prejudice to the section as it stands here, I will do that.

Then we could leave the matter at that.

Amendment No. 71 withdrawn.
Amendments Nos. 72 and 73 standing in the name of Deputy Cowan not moved.

I move amendment No. 74:—

In page 57, Section 114 (2), line 45, to insert "or during a period during which reservists are called out on permanent service under Section 88", after "force".

It is the same in effect as amendment No. 61.

Amendment put and agreed to.

I move amendment No. 75:—

In page 58, to delete Section 117 (b) (ii), line 26.

This is a section which deals with liability to military law. The section sets out that every person mentioned in it shall for the purposes of the Act be a person subject to military law. Such persons as far as officers are concerned include an officer of the Permanent Defence Force at all times, and there is no complaint about that; an officer of the Reserve Defence Force when he is ordered or employed on service or duty for which as an officer of the Reserve Defence Force he is liable —and that is perfectly all right—and an officer of the Reserve Defence Force when he is in uniform.

I do not know what is the explanation of putting that in. In other words whenever an officer of the Reserve Defence Force wears uniform he is subject to military law. That is a very wide provision. We have occasions on which the Reserve Defence Force are in training, when they are called out on duty, and in such cases, of course, they are subject to military law. But there are occasions when under the regulations governing them an officer of the Reserve Defence Force may be permitted to wear uniform, for instance, to attend a dance, a dinner, or a funeral, and there are other occasions on which he may be permitted to wear uniform for a short period. Clearly to say that just because he has got permission to wear uniform he is liable to military law appears to me to be going entirely too far.

Liability to military law means not only that he has to obey the commands of superior authority but that if he commits an offence he can be tried by court-martial for it. When I say commits an offence I mean that he may on an occasion when he is at a dinner or a dance or a function speak to some superior in the way he would speak to that superior outside if neither of them was in uniform, and he might find himself in custody, he might find himself charged, and he might find himself subject to court-martial. If I saw any reason for this I could agree that it should be in the section, but as far as I can see the whole tenor of the sections we have discussed up to the present in regard to politics, membership of local authorities, is to make it almost impossible for any person to be an officer in the Reserve Defence Force. Everything that can be thought of to make it difficult for him to be an officer in the Reserve Defence Force is inserted in this Act, and I think that this is what one would call the last straw, that if he is permitted to wear uniform for a couple of hours he is subject to military law, that he must obey the orders of everybody above him and if he does not do it he can be taken into custody, charged and court-martialled, fined or even sentenced to imprisonment for some breach of military regulations that may be in fact very trivial. I would rather see no permission given to Reserve officers to wear uniform except that they were on duty or service, called out for training, called out on permanent service, called out in aid of the civil power, or in any of the other matters in which they will be called out on duty. But to be permitted to wear uniform at a social function and as a result of that permission to be subject to military law with all the implications is, I think, going too far and is one of the defects we have in this Act, that there has been too much endeavour to deal with every possible little matter that could arise in regard to the Reserve. Up to the present if a person wears uniform who is in the Reserve the number of functions at which he would have permission to wear it is rather limited. Certainly if there is any desire to popularise the wearing of uniform among Reserve officers this is going very much against that. I would be very anxious to hear from the Minister as to why he thinks it is necessary to impose all these tremendous obligations on an officer simply because he gets permission to wear a uniform for a couple of hours to a social function or something else.

When a Reserve officer wears the uniform of the State, whether it be to a wedding, a wake or a funeral, he is symbolic of the State as a whole. There is no obligation on him to wear the uniform—he can go in civvies—but when he puts it on it is reasonable that there should be some regulation that would make him remember that he was in the uniform of the State. While it is true that this provision may not popularise the wearing of the uniform, it will help to ensure that it will be duly honoured at all times when it is worn.

If an officer feels like offending a senior officer who is present at some function or other, such a regulation might make him think twice about saying what he was going to say. Then, having considered it fully and decided that it constituted an offence, if he wished he could go outside, take off the uniform, return wearing an overcoat, and say what he had to say. I think Deputy Cowan is painting a picture of the officer in uniform on these limited occasions that can hardly ever materialise. As the uniform of the State is symbolic of the State itself, precautions should be taken to see that it is honoured properly.

I think that fairly states the position. What I was thinking when Deputy Cowan was speaking was that if I were in the position of an officer who wanted to tell off a former senior officer, I would go in civvies; then I could say what I liked to him and I would be fairly safe. Although the Deputy is making the case appear to be one of considerable importance, it is not in fact. It merely means that if a Reserve officer desires to go to some dance in uniform rather than in a dress suit—and I rather imagine it is much more convenient to go that way than in the dress suit— there would be safeguards for the State from the point of view of anything in the nature of a scene by an individual who is in a State uniform. The Deputy himself would be the first to admit that such a thing would be highly undesirable.

I suppose as the State grows the Defence Act will grow with it. The original Act, a very useful Act in its own way, most of which has been incorporated in this particular Bill, is being added to as a result of the experience of very many years. Now we have a type of Reserve that never existed in the State before, that is, the F.C.A. There are large numbers of men who wear the uniform outside of duty hours. They like to wear it, perhaps to go to a football match or even to attend dances or places of amusement. In that regard there must be some safeguard to ensure that nothing undesirable will happen in the case of a man wearing a uniform and that people wearing the uniform will realise that in wearing it they have certain responsibilities. They are not compelled to wear the uniform except when they are on duty with the Reserve. This sub-section merely ensures that individuals wearing the uniform will respect it in the manner in which it should be respected. It is an essential clause which would not in any respect be operated in the way suggested by Deputy Cowan. First of all, you will not have M.P.s inside a dance hall or places of entertainment. In general, I would say that this provision would only operate in the case of unseemly conduct in the streets of the cities or the towns of the country.

I am sure Deputy Cowan imposed all these conditions on his own army.

I have always been searching for information not only on this section but on many others, but I could not get it. Since the F.C.A. was formed has it been found that their conduct or the conduct of individuals has been such as to necessitate such a section as this? After all, laws should be based on experience. Has the conduct of individual members of the F.C.A. or of any other unit of the Reserve, when they were permitted to wear uniform, been such as to necessitate this particular section?

It is hardly necessary to discuss that aspect. It would not be here if there was no necessity for it.

I would not want to know whether there was one instance, ten instances or 20 instances in which that would be done. Take the whole of Section 117, which deals with the liability of persons to military law as officers. There is one sub-section (a) which deals with permanent forces and there is no difficulty about that. Then we have seven clauses dealing with the Reserve and two or three more descriptive clauses. I am inclined to think that it was the mental ingenuity of the draftsman in regard to the Reserve rather than instances necessitating this provision that has been responsible for putting it in. Every conceivable way of bringing in Reserve officers and making them subject to military law has been used here. It had to be finally clinched, that every time he wore uniform he was subject to military law.

I did not give the impression that anyone went to a dance or other function for the purpose of saying something to his superior officer. I did not say that. What I did say was that a person might say something to a person who was his own neighbour in the F.C.A. in uniform who had a stripe more than him, at the dance, and in that way he might be subject to military law. He could he put under arrest, he could be charged. In my view, if this section were exercised, instead of stopping scenes it would have the effect of causing and creating scenes. I can see no reason why 20 officers of the F.C.A. attending a dance for three or four hours, cannot come in and enjoy themselves at that dance, have a few drinks if they wish and swap yarns and discussions and act as if they were in an officers' mess.

They are doing that regularly.

I know; but what I am trying to find out is whether there have been incidents that involve the application of this particular section. I take the opposite line to what the Minister and Deputy MacEoin take in regard to this. I always took the line that an officer was a gentleman and that the very fact of the President giving him a commission meant that he was a person who was fit and worthy to have that commission, that he was a person who could be let loose with the uniform of his country on him for a couple of hours at a dance without being subject to the provision that he could be ordered about by anyone superior to him, that he could be taken into custody by a man with a stripe more than him, and that he would be under the control and authority of military police officers who might happen to visit the particular function.

I mentioned in other sections that there seems to be an idea of debasing the officer rank, particularly the Reserve officer, right through this whole Bill. The Minister knows, and Deputy MacEoin knows, that before a person is granted a commission he has to satisfy very many people that he is suitable in character and in general conduct to be an officer. He is commissioned, not by the Minister but by the President, because of the confidence reposed in him by the Government. Here we talk about making provision for his misconduct on the streets and for his misconduct at a social function. It certainly does not seem right to me. If an officer wears uniform for three hours and if he acts the ruffian in a dance hall, that is the end of him as far as the Reserve is concerned and ought to be the end of him. If he dishonours his uniform in a public street, that is the end of him as far as the Reserve is concerned. Yet there is put in a clause here which says that when he goes to a dance he can be ordered about by his superior officer.

Who is to find out that he has dishonoured it? It is not a civil offence. It must be a military tribunal that will find out whether he has dishonoured it or not.

If he does it in the public street, a military tribunal, of course, investigates it, not a court-martial. If an officer behaves improperly in the middle of O'Connell Street and he is in uniform and it is reported a week later to the Minister, and if it is discovered on investigation that he has acted in that fashion, obviously his commission is terminated, very properly terminated, and that is all about it.

There are some difficulties. Supposing he has the right to wear uniform for three hours and it is subsequently alleged he has acted in that way, he may not then be court-martialled, because he has ceased to be subject to military law. There are certain things in respect of which he could be court-martialled, but these things do not include this type of thing and his general conduct comes into account. I do not see very much sense in having all the investigations we have into the manners of officers, in having the ceremonial of the President presenting him with his commission because of his good character and good conduct if we are to allege that those officers' conduct could be so bad—it does not seem to be considered as an isolated incident—that it is necessary to bring in a section such as this to make them subject to military law when they are allowed to wear uniform for a couple of hours at a social function. At the moment, they wear uniform to a social function, they go there and they are all happy, all ranks are forgotten, and they all enjoy themselves for the night. Generally, the trouble does not come from the junior in rank: the trouble in many of these cases comes from the senior in rank. Once you make a group of officers subject to military law when they are at a dance, it becomes the same as if they were on the square doing drill or out in the country on manoeuvres or out on permanent service against the enemy. In my view, the whole thing is brought down to a state of absolute ridiculousness.

It certainly is extraordinary that when you give permission to officers to wear uniform at a wedding or a funeral or a social function—or, as the Minister says, to go to a soccer match, a Gaelic match or a hurling match—you have to make provision that he can be ordered about by his superior. That is what "subject to military law" means. You have to do that in case he might act the ruffian and let down the honour of the uniform. In my view, it is going entirely too far. This section is like other sections where we had this reaching out all the time to try to capture everyone in a particular net— the net, in this case, of military law.

I ask the Minister have there been so many incidents of this kind that it is necessary to bring in such a section? If there have been, I would say there has been some failure or neglect in selecting the persons who should be honoured by the President with commissioned rank in the Defence Forces of the State. It is for that reason that I am opposed, very strongly opposed, to putting that in.

Amendment put and declared lost.

What about amendment No. 76?

I move amendment No. 76:—

In page 59, to delete Section 118 (b) (vi), line 23.

The principle is the same but in this case it applies to a soldier.

Amendment put and declared lost.

The amendments dealing with the death penalty are amendments Nos. 77 to 84 and also amendments cognate to amendment No. 84, that is, amendments Nos. 92, 95, 96, 122, 123, 151, 154, 157, 163, 164, 165, 168, and 173. As I have said, these amendments deal with the death penalty. I suggest that these amendments should be debated together. That would allow a debate on the general question of capital punishment on amendment No. 77, with separate decisions on the amendments, as the House requires.

I shall have to look at these as we reach them because they are rather involved.

It is a general debate on the death penalty.

That is from Nos. 77 to 84. I want to check on all these others as we come to them. I want to see how they are related. I could not possibly see that without examining them.

Section 123 is a section which provides for what is termed "capital offences by commanders when in action". The section reads as follows:—

"Every officer subject to military law and in command of a State ship, service aircraft, defence establishment, unit or other element of the Defence Forces—

(a) who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command or his ship, aircraft, or his othermatériel into action, or

(b) who, being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously, or

(c) who, when capable of making a successful defence, surrenders his ship, aircraft, vehicle, defence establishment,matériel or unit to the enemy, or

(d) who, being in action, improperly withdraws from the action, or

(e) who improperly fails to pursue an enemy or to consolidate a position gained, or

(f) who improperly fails to relieve or assist a known friend to the utmost of his power, or

(g) who, when in action, improperly forsakes his station,

is guilty of an offence against military law and shall, on conviction by court-martial, be liable to suffer death or any less punishment awardable by a court-martial."

To that section I move the following amendment:—

In pages 60 and 61, to delete Section 123.

I have, further, put down an amendment that instead of the word "death" in the phrase "is guilty of an offence against military law and shall, on conviction by a court-martial, be liable to suffer death or any less punishment awardable by a court-martial," the words "penal servitude" shall be substituted: that is amendment No. 84. I am just mentioning this to get the matter tidied up before we start. The Minister proposes to delete sub-section (b) lines 39 to 41. In other words, the first amendment of the Minister is to delete the provision that an officer who, being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously. The Minister agrees that that sub-section should be deleted from the section, and I think there will be general agreement with that.

Sub-section (d) reads as follows:—

"(d) who, being in action, improperly withdraws from the action, or"

The Minister proposes, in amendment No. 80, to substitute "unjustifiably" for "improperly" there. I think there would be agreement that that is a much better word. It is a matter which we can deal with subsequently.

Sub-section (e) of Section 123 reads as follows:—

"(e) who improperly fails to pursue an enemy or to consolidate a position gained, or"

In amendment No. 81, the Minister proposes to substitute "unjustifiably" for "improperly" there.

Sub-section (f) reads as follows:—

"(f) who improperly fails to relieve or assist a known friend to the utmost of his power, or"

In amendment No. 82, the Minister proposes to substitute "unjustifiably" for "improperly" there.

Sub-section (g) reads as follows:—

"(g) who, when in action, improperly forsakes his station,"

In amendment No. 83 the Minister proposes to substitute "unjustifiably" for "improperly" there.

In suggesting these amendments, I think that, to a considerable extent, the Minister will shorten the discussion of this particular section. Even with the Minister's amendments, and knowing what the Minister has in mind at the moment—even with these—the section seems to me to be a very dangerous section and I am sorry that when the Minister proposed amendments to sub-sections (b), (d), (e), (f) and (g) he did not also endeavour to deal with sub-section (a).

You have said, a Leas-Cheann Comhairle, this section and these amendments enable the House to discuss the matter of this particular type of sentence by a court-martial. I want to say in the beginning that, as far as military law is concerned in this country, this is a new section and a new conception. It is a new idea which we have not had in operation in military law as it has been operated up to the present. I think that, before the House agrees to passing this section, it should give the very deepest consideration to it.

The next section, Section 124, deals with capital offences by any person in relation to the enemy.

The old Act set out certain offences which were punishable by death as a result of court-martial. The section provides that a commander—in order to make it easier, I propose to use the word "commander" instead of "officer subject to military law and in command of a State ship, service aircraft, defence establishment, unit or other element of the Defence Forces"—who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command or his ship, aircraft or his othermatériel into action, is guilty of an offence, and that raises right away the very serious point: what is his utmost exertion? Who can describe whether he uses his utmost exertion or not? Is it right that a person should be subject to hanging or shooting because a small number of persons decided that he did not use his utmost exertion? In the criminal law of this country, because undoubtedly this would be part of the criminal law, it would be a very serious thing to have a decision taken as to whether a person used his utmost exertion or not, which decision, if against a particular officer, may result in his execution although, as I will say subsequently, it may be found out afterwards that in fact he was right and did the right thing on the occasion. It will then be too late to make amends because some people, on very inadequate evidence, decided that he did not use his utmost exertion.

This is a section which has concern not only for the Defence Forces but for the community as a whole. We have had discussions from time to time on this question of the death penalty, on whether the death penalty should or should not in any circumstances be imposed and whether it might not be better to have some alternative arrangement other than death for crimes and offences. In many communities that matter has received considerable attention. In Britain not so long ago the matter was considered by a select committee, as a result of which there was a proposal to abolish the death penalty altogether, and in many other countries jurists and statesmen have been considering whether or not it is desirable that the death penalty as a punishment should be retained in their laws.

At a time when these discussions have been taking place all over the world and at a time when all serious-minded men have been giving attention to the problem, it seems to me that we ought not to be widening the grounds on which a person may be executed. I want to make it clear that where a person is tried on a charge of murder by a jury in this country, he can be convicted only when the 12 men or women on that jury unanimously decide that he is guilty of the offence, and, when they unanimously decide that he is guilty, the judge then is bound in accordance with law to sentence him to death. In this section, which proposes to extend the law in regard to executions, there is no such safeguard as is available to a person tried before a jury in the Central Criminal Court. There is no requirement that the court trying him must be unanimous and there is no requirement that he must be tried by 12 persons. There is simply a provision that he will be tried by court-martial and he may be sentenced to death.

I sincerely hope that in the discussion of this matter members of the House will not take the line that this is purely a military act, that it deals with rules and regulations in the Army, that they will leave it to the Minister, to Deputy MacEoin, to Deputy Collins and to Deputy Cowan to debate it and take no interest in it. I sincerely hope that members of the House who are concerned about this matter of capital punishment will take an interest in the provisions of this section and will express their views. Whatever justification there may be for taking no part in the discussion of the ordinary disciplinary provisions of the Bill, I think it would be regrettable if members who are interested in the question of capital punishment did not express their views in relation to this new section.

Section 196 (2) of the Act says:-

"Sentence of death shall not be awarded by a court-martial save with the concurrence of three-fourths or more of the members of such court-martial."

So that right away you have a very big conflict between the provisions of the ordinary law of this country in regard to sentence of death and the provision in this Act in regard to court-martial. Three-fourths of the members of the court must concur. Generally speaking, a general court-martial consists of five. I just want to be precise as to what the new Act says. It says that a general court-martial shall consist of a president and not less than four other members. One may take it, therefore, that the constitution of a general court-martial is five officers.

Who selects the officers?

Courts-martial are set up by what is known as the convening authority who may be, normally, the Minister or the Adjutant-General. It is very seldom that the Minister ever convenes a court-martial.

Section 186 of the Act says:—

"(1) Each of the following persons shall have power to convene a general court-martial, that is to say:—

(a) the Minister,

(b) any officer (holding the army rank of colonel or the naval rank of captain or higher commissioned rank) authorised in that behalf by warrant of the Minister."

So that, from the point of view of a general court-martial, the Minister may convene it or an officer of a specific rank who is authorised by warrant to convene the court-martial may do it. In actual practice, a court-martial is generally convened by the Adjutant-General to whom the Minister gives his warrant. In the case of active service, the Minister may give his warrant to somebody else, but in general practice and normally, a general court-martial is convened by the Adjutant-General and he is the person who appoints the officers who serve on the court-martial.

I think it is necessary to understand that a court-martial consists of approximately five officers and three-fourths of the five must find a person guilty before he can be sentenced to death. In other words, four officers out of the five may sentence to death. That is the first thing. I think it is necessary that one should know what a general court-martial means when one is dealing with this section. In a court-martial an accused person would have certain rights of challenge. If he can prove that an officer of the court was prejudiced against him for any reason he can raise an objection to that person and the objection is heard.

Suppose the president is objected to and the court decides it is a well-founded objection, then the president retires and the new president is appointed. If the objection is to some other member of the court and the court thinks the objection is well founded, then he retires and an officer from the waiting members is put there instead of the officer objected to. Always, when a court-martial is convened, a certain number of officers in waiting are appointed to fill vacancies that may occur. When the court is fully constituted, the trial begins. There is no right of an accused person to object to a member without giving reasons.

The reasons must be given. They must be established before a person is obliged to retire from the court. In an ordinary criminal case in Green Street before a judge and jury an accused person has a right of objection to a number of the jurors without giving any reason. I am not altogether sure of the number but I think it is five. Without giving any reason at all, he has the right to challenge those five and then he has the right to challenge any other person on the jury against whom he can show cause.

That is the difference between the constitution of the two courts. So that, when one comes to a matter of execution by court-martial, one has to realise that the accused person before the court-martial is very limited and restricted in his rights of challenge and is very limited in the smaller number of persons who will try him and, as I have said before, it is not necessary that there should be a unanimous verdict. Why we went to three-fourths and not to a unanimous verdict, I do not know. We can deal with that later.

Apart entirely from the general question of the death penalty, we have to examine this section because it introduces something that is new in the law of the country. In other words, this section proposes to insert in our laws a new ground for executing citizens of the country and it must be examined from that point of view. Section 123 says:—

"Every officer subject to military law and in command of a State ship, service aircraft, defence establishment, unit or other element of the Defence Forces—

(a) who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command or his ship, aircraft, or his othermatériel into action.”

This section provides that such a person, if found guilty by a court-martial constituted as a court-martial is constituted under the Act, may be sentenced to death and may be executed.

Then we have the next sub-section, that such a commander may be sentenced to death and may be executed if:—

"being in action, he does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously."

The House should ponder on those words:—

"in his own person and according to his rank, encourage his officers and men to fight courageously."

I will come back again to what those words mean, but I want the House to ponder on them. How is he to encourage his officers and men to fight courageously? In 1914, when the British Army went to France, we do remember the officers who went out with their swords walking in front of their men against the enemy. I take it it can be said that they did in their own person and according to their rank encourage their officers and men to fight courageously. I wonder what a general would think of an officer who did that in modern war.

The Duke of Plaza Toro was right.

A commander may be sentenced to death by a court-martial and executed who, "when capable of making a successful defence," which I may suggest is a matter of opinion, "surrenders his ship, aircraft, vehicle, defence establishment,matériel or unit to the enemy” or a commander who, “being in action, improperly withdraws from the action,” or as the Minister now suggests in his amendment, “unjustifiably withdraws from the action.”

There is one of the difficulties in regard to all the sub-sections of this section. Before the officer is charged at all, some superior officer must have taken him into custody and charged him with improperly withdrawing from the action or, as the Minister says in his new amendment, "unjustifiably". That is the point I am just making at the moment in regard to it: that some superior of this commander, almost on the spur of the moment, or it maybe some time afterwards, makes up his mind that the officer unjustifiably withdrew from the action. He charges him with that, sends him forward for trial by court-martial, and the court-martial is set up to find out whether he unjustifiably or improperly withdrew from that action or not. If they find he did, the court-martial may sentence him to death.

Then a commander who unjustifiably or improperly, improperly is in the section, "fails to pursue an enemy or to consolidate a position gained" may be convicted by court-martial and sentenced to death, and a commander who "improperly fails to relieve or assist a known friend to the utmost of his power" may be convicted by court-martial and sentenced to death, or a person who, "when in action, improperly forsakes his station" may be convicted by court-martial and sentenced to death. Every sub-section of that section, in my view, brings in a provision that is entirely foreign to our concept of law. Everything is based, not on precise facts, but on opinions. Every sub-section is based on opinions which may or may not be right.

Anyone who has read the history of the last war or of the previous war will find that particular officers were considered to have acted improperly or unjustifiably in particular circumstances, but subsequent investigation established that they were, in fact, correct and that there was nothing improper or unjustifiable in what they did. Certainly it would be of very little benefit to one of our officers if he is tried, convicted, sentenced to death by a three-fourths majority of the officers of the court-martial and executed if history proves afterwards that he was right in what he did.

Why is this most unusual section, which is so contrary to our own conceptions of law, introduced into the Defence Forces Bill? In the debate in the Select Committee the Minister said, I think it was on that section, that it was provided in the Canadian Act and, because it is provided in the Canadian military code, we must bring it into our military code.

I did not say that.

I said I thought the Minister did say that.

I did not say it was because it was in the Canadian Act.

I am saying that. I said that the Minister stated that a section similar to this is in the Canadian military law.

I said that it was in another Act as well and I could not see anything wrong in going to other countries to improve ourselves.

The Minister did say that. Where the Minister and I disagree is on the matter of improvement. I think that the section does not improve the Bill and that the justification for bringing it in is that such a section exists in the laws of another country. There is one matter on which we cannot just get down to what is done in other countries and that is in the matter of death. We have had 30 years' experience under the old Act and never once under that Act did a situation present itself in which the Minister or the Government or the Army found that there were not adequate powers to deal with whatever arises. While the Minister refers to the Canadian Act, I want to refer to the British Act, which deals with military law in the British army.

In view of the time that Deputy Cowan, the Minister and Deputy MacEoin have put into this discussion, could we have, say, a half-hour recess?

What does the Minister say?

I thought the Whips had arranged for something like that. I was rather surprised when it was not mentioned on the Order of Business. I thought we were to have a half-hour recess.

Perhaps if the Minister fixes an hour, we can get agreement on it.

I understood from the Government Chief Whip that if there was general agreement in the House we could adjourn for an hour about this time.

I would agree.

It is, if I may say so, somewhat of a strain.

Is this as a sympathetic gesture to Deputy Cowan?

No, it is not. I think the Minister is in the same boat.

What time does the Minister suggest?

An hour would be much better than a half-hour.

Agreed to adjourn for one hour.

Business suspended at 6 p.m. and resumed at 7 p.m.

When we had this very desirable break, I was about to deal with the law as it is to-day in this country and the law as it exists in regard to the British army in England and elsewhere. I was making the point that, while Section 123, which is about to be introduced to our military code, is based on Canadian law, we have no information as to the circumstances in which such a section was introduced into Canadian law. We do know that, as far as the British army is concerned, it has existed for more than 100 years, that it has fought many wars, and that it has not needed a section such as the section which is proposed we should adopt. In our own Act we had a series of offences which were punishable with death, offences in relation to the enemy. They are set out in Section 32 of the Defence Forces (Temporary Provisions) Act, 1923. An examination of that section shows a very marked difference between the principles on which it is based and the principles laid down in the section we are discussing.

In the 1923 Act there is the offence of "unjustifiably surrendering, yielding or abandoning any garrison, guard, place, post or position which it was his duty to defend." It was also an offence punishable with death to endeavour "in any way to persaude, induce or compel any person subject to military law" to commit that offence, that is the offence of surrendering. Another offence punishable with death was that of "treacherously, or without due authority, holding communication or correspondence with, or giving intelligence to the enemy." Further offences similarly punishable were those of misbehaving or inducing others to misbehave before the enemy in such a way as to show cowardice; having been made a prisoner of war, the offence of voluntarily serving with or voluntarily aiding the enemy; the offence of assisting the enemy with arms, ammunition or supplies; the offence of treacherously assisting the enemy in any way not specifically mentioned in the section; the offence of knowingly, when on active service, doing any action calculated to imperil the success of, or endanger any portion of, the forces or the offence of attempting to commit any of the offences specified in paragraphs 3, 6 and 7 of the section.

It will be noticed that there is a very substantial difference between the principles laid down in that section and the principles laid down in Section 123 which we are now discussing, because in Section 123 there is a new offence introduced—that of not using his utmost exertion to bring the officers and men under his command into action. The offence to be alleged under the section is, not that he did not bring them into action, but that he did not use his utmost exertion to bring them into action. In the second sub-section, the offence is that he did not encourage his officers and men to fight courageously, being in action. The next offence is that, when capable of making a successful defence, he surrendered, that he improperly withdrew from the action.

A further offence is that he improperly failed to pursue an enemy or improperly failed to relieve or assist a known friend or improperly, when in action, forsook his station. There is a substantial difference in the principles governing these two sections. In one it is a question of what is known as overt acts, specific acts, which are alleged and in the other it is a matter of holding first an inquiry as to whether he used, say, his utmost exertion or not, or whether he encouraged his officers and men to fight courageously or not. The surprising thing is that while this section is new and, as the Minister says, is based on the Canadian section, its principles do not exist in the law that governs the British army, on which our 1923 Act was based.

I think that before this Dáil decides to introduce a section which creates new capital offences, the reasons for creating these new capital offences should be specifically stated and the Dáil should be convinced by reasons based on experience that the powers that existed for the past 30 years under our law were inadequate to deal with the situations that arose. I think that it is a wrong form of reasoning to say: "In preparing this Defence Forces Bill, we had a look at the Acts in other countries; we find that the Canadians have introduced such a provision and we thought it would improve our Act if we introduced it here." I submit to the House that that is faulty reasoning and that the matter of the execution of a citizen, whether that citizen be in uniform or not, is a matter of such seriousness that only for the strongest reasons should such a provision be incorporated in our statutory law.

Now, apart entirely from that general criticism of the section, I want to draw the attention of the House to the difficulties that would confront any court which would be dealing with a section such as this. Taking any commander who is charged before a court-martial with the offence of "not using" his utmost exertion to bring his aircraft into action, what, might I ask, is meant by that? That is what is provided in the section—that the captain of an aircraft or the commander of an aircraft who is generally the pilot does not use his utmost exertion to bring his aircraft into action.

He sticks the nose of the craft in the ground when he is going to go up.

I do not think that that would in fact be right. He "does not use his utmost exertion"——

To bring it up.

——to bring his aircraft into action. I do not know whether it is possible to stick the nose of the aircraft into the ground or not, but how could the offence of not using his "utmost exertion" in that example be established? The fact that he sticks the nose of the plane in the ground—if he were able to do that—would raise other matters, but it could not possibly come under the heading of not using his "utmost exertion" to bring his aircraft into action. That is where the captain of an aircraft or the pilot— and I take it circumstances could arise in which the captain of an aircraft might not be the pilot—is concerned. If it is not an aircraft, and if it is a ship that he did not use his "utmost exertion" to bring into action, what does "utmost exertion" mean there? How is a ship brought into action? I take it that it is against another ship. If we face realities we have a certain number of small ships and in the event of a naval battle it would appear to me that the wisest thing our ships could do would be to keep well out of range of the enemy, so that I think there is a lot of nonsense about this provision and that it does not relate to the type of navy we have here, or are likely to have in a long period.

I could imagine one of our little naval vessels coming into conflict with a naval force belonging to another country. I do not think it matters very much what the officer commanding the ship would do so far as that is concerned or what exertion he used. Naturally, neither the ship nor men would last very long. We cannot for the purpose of discussing this assume that any other naval force in the world will have ships as small as we have, or in fact smaller, so that it seems to me that not using his "utmost exertion" to bring his ship into action is theoretical, and that it has nothing to do—good, bad or indifferent—with what we have to visualise may happen.

Take the case of the ordinary infantry commander who, when he is ordered to carry out an operation of war, or on coming into contact with an enemy that it is his duty to engage, "does not use his utmost exertion to bring the officers and men under his command into action." I cannot visualise the use of the words "utmost exertion" in this context at all. He either brings them into action or he does not, but to say that he did not use his "utmost exertion" seems to me to be nonsense. "Exertion" always denotes, as far as I am concerned, some physical action. In the ordinary way, if a force has to be brought into action certain specific commands are given. These commands are obeyed and carried out by subordinate units right down the line. What can a brigade commander do? In what way does he not use his "utmost exertion"? Words in Canadian law may mean one thing; in our law they can only be interpreted in the way that we understand such words should be interpreted, and I would like to know from any member of the House what exactly that sub-section means. If we do not know what it means and if we find it difficult to understand what it means why should we prescribe the penalty of death for it? That is the first sub-section of that paragraph. I would be very interested to hear anybody interpreting that and telling me what offence a commander could commit, or what he must do or not do to be guilty of that particular offence?

In the event of a unit, a ship or aircraft being under orders to carry out an operation of war, what exertion is required of the commander? This section says that the offence is not using his "utmost exertion," and if the House would have difficulty in knowing what "exertion" means, what does "utmost" mean? I think the House is entitled to have from the Minister, when he replies, an explanation of "utmost exertion."

The next paragraph says:—

"who, being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously."

What does that mean? Visualise a battalion in action, consisting as is usual of four companies, each of those companies under the command of its own commander, each divided into platoons and subdivided into sections, and spread over a considerable area of territory, on a front of, say, 500 yards or 1,000 yards, with considerable coverage in depth also. Can any member of this House visualise the circumstances in which that battalion commander, in the middle of an action, can encourage his officers and men to fight courageously? This is not the old days of the Zulu War, nor is it the days of Omdurman or the time of the Indian Mutiny, nor is it the time when leaders were in front of their commands on horseback or on foot, when personal courage had an effect on the particular command, but the days of modern warfare. When I say that, I do not mean warfare of the future, but the warfare that we were accustomed to and that we knew something about during the last World War. In what way can a battalion commander encourage, during the battle, his officers and men to fight courageously? What communication between a battalion commander and his company commanders is visualised in this?

I do not think it is an unfair criticism to ask that there should be a very full explanation as to the circumstances in which it could be visualised that a commander in action did not encourage his officers and men to fight courageously. I always understood that soldiers were trained and organised for the purpose of being successful in way; that a unit, whether it was a battalion, a brigade or a division, was organised for the purpose of being as efficient as possible in the event of war, for an action with the enemy, and that the commander is in no position, during the action, to carry out what is said here, "to encourage his officers and men to fight courageously." The men are trained, they are equipped and they are subdivided into the smallest little units. The smallest little unit in which there can be personal control is the small little unit that is commanded by a corporal, and above that there cannot, except in very special circumstances, be what is known as personal control during an action. If there is not personal control, if the control is by means of radio or any of the more modern methods of communication, how can it be said that an officer can encourage his officers and men to fight courageously during an action?

The whole thing appears to me to be nonsense and that it has no reality with facts. I regret very much that I had not the time to devote to a study of the history of this particular section in the Canadian Act. I would like to have been able to ascertain if any person was ever charged under that section in modern times with the offence of not encouraging his officers and men to fight courageously. The paragraph says, and this is important, that a person who, "being in action, does not, during the action, in his own person and according to his rank, encourage his officers and men to fight courageously" is guilty of an offence.

I would like very much to hear the Minister's explanation of that paragraph. I would also like to have an explanation as to the particular type of commander that it applies to. If it is the commander of a ship, with a special post on the ship, has he to leave that particular post and run round encouraging the gunners, the men who are using the different weapons which they have on the ship, to keep firing faster? Everybody knows that, in a ship, control is exercised from one particular post. I know very little about naval matters, but I think it is from the bridge that the commander during an action gives his orders, directions and instructions. What is he to do in his person and according to his rank to encourage his officers and men to fight courageously? That section applies to the commander of a ship. If it is an aircraft and the pilot is engaged in keeping in touch or breaking touch with enemy aircraft, at one height now and another height a few seconds later, is it suggested that he must go around about his crew and encourage his crew to fight courageously? I have dealt with the ship, the aircraft and the unit. If that is the position, why put in that section at all? Why in that position of uncertainty make the punishment death? Who can say in the circumstances of modern warfare whether a person encouraged or failed to encourage by his rank and person his officers and men to fight courageously?

I have examined many things in this Act. I have examined many things in other Acts from time to time, and I have never come across a sub-section that appears to me to be so ridiculous and one which carries with it such a heavy penalty, namely, the penalty of death. One could understand a section making provision to deal with the position of a person who is made a prisoner and voluntarily serves with or aids the enemy. There can be no doubt in that case. On proof of that, and it is capable of proof, a court has no trouble in establishing a finding of guilty. There can be no trouble with the offence of assisting the enemy with arms, ammunition or supplies. These are specific acts. They can be proved. They can be defended.

If an officer is charged with the offence of not using his utmost exertion to bring his ship, his aircraft or his men into action, what defence is open to him? If he is charged with not encouraging his men to fight courageously, what defence is open to him? How can he defend himself? We have the general principle that an accused person cannot be found guilty unless the charge is established to the satisfaction of the court and, unless it is established to the satisfaction of the court, there is no obligation on him to defend himself. That is a general principle of law. In recent times, because of alterations in the rules of procedure, that has been made applicable to military courts-martial. Now a person defending an officer charged with an offence may at the end of the prosecution ask the court to give a direction in favour of the accused person, in which case, if the court feels that the charge has not been established or if it feels there is no case to answer, a direction will be given. If the court feels that aprima facie case has been established and that there is something for the defendant to answer, what answer can he make? Must he bring each and every officer and soldier who served with or under him at the time and ask each and every one did he use his utmost exertion to bring him into action or did he encourage him to fight courageously?

In relation to "courageously" it is important to consider the meaning of "courage". That would be one of the difficulties facing any court dealing with this matter. What is courage? If a person is not guilty of cowardice, has he courage? Is the courageous man the man who is afraid to show his cowardice? I have often thought he was. Is the courageous man the man who is insensitive to what is happening around him? Is he the man with a very sharp conception of what is happening around him but keeps his head and his heels well down and fires when he thinks it is necessary to fire? Is he the person who blazes all around him irrespective of whether or not there is a target in front of him? These points raise important aspects of this particular charge. I am perfectly certain that whatever the Canadians may have done about it, all its aspects have not been seriously considered here, because, if they had, I am perfectly certain that such a section as that would not have been drafted. Remember, this is a serious matter. If in a court of five officers there are four who think that a particular commander did not in his person and according to his rank encourage his officers and men to fight courageously they can sentence him to death and he can be executed. I am concerned first and foremost with the charge and, secondly, the proof of the offence, and, thirdly, the case that will be open to the accused person to put forward in his own defence. As we know it here, there is no trouble about murder. A person is charged with murder. He either killed or he did not. There is not very much difficulty about that. If he is charged with treason felony the facts may be proved and the defence can be considered and the accused person knows what is alleged against him. But on a charge of this kind, that he does not during the action encourage his officers and men to fight courageously, he has no idea, or could have no idea, as to the facts that would be put forward and which it is necessary for him to controvert.

I said earlier, and I just like to repeat briefly in connection with this, that before he can come before a court-martial on that charge some superior officer has to come to the conclusion that he was guilty of the offence of not during the action in his own person and according to his rank encouraging his officers and men to fight courageously; and if such a superior officer comes to that conclusion—and it would be a most extraordinary conclusion for a superior officer to come to —he arrests the person, he is returned for court-martial, and he is tried then by general court-martial for the particular offence. I would ask and impress upon the House not to allow to creep into our law, and particularly into our law involving capital punishment, an offence which is uncertain, which cannot be simply defined, and which is nothing more than a frame of mind on the part of particular individuals who happen to be dealing with the matter at the time.

I come then to the next sub-section:—

"who when capable of making a successful defence surrenders his ship, aircraft, vehicle, defence establishment,matériel or unit to the enemy”.

Again we have the difficulty arising and the whole argument, the inquiry as to whether or not he was capable of making a successful defence, and on that there may be varied views. Some people may take the view that he could not make a successful defence. Other persons may take it that he could, but it will be left to five officers to decide on whatever evidence comes before them whether or not he was capable of making a successful defence. On that, if those five officers, or four of them, come to the conclusion that he could then he is sentenced to death and he may be executed. Anyone who has read the stories of the last Great War, read the history of it in the varied parts of the world in which battles were fought, may wonder why particular officers in other countries were not charged with an offence such as this, and why, if they have had no examples of charges by court-martial on offences such as this, we in the Defence Forces of Ireland should introduce such a provision.

In the old days—one would find it in Montaigne's Essays—where a commander of a citadel or town defended the town when in the view of the enemy he should not have defended it, that resulted in the whole defence establishment of the town being put to the sword. The rules of war and the customs of war have changed considerably since that, but at least there was some little bit of sense in that provision, that where the commander of a garrison who should have surrendered because he was completely surrounded fought on and the town was eventually captured the commander of the besieging troops came to the conclusion that he had unnecessarily defended the town and had caused the deaths of attacking soldiers and for that offence the whole garrison was put to the sword. That was how things were dealt with quite a long time ago. Now we have introduced here a provision that a commander who, at the time, is of opinion that he should surrender for the purpose, say, of saving the lives of his men or for any other reason that seems to him proper at the time can subsequently, on an examination in the cold light, perhaps, of peace, be found when all the facts are examined to have been wrong in his view, wrong in his opinion and wrong in his action, and that he should have fought on instead of surrendering, and for that he may be sentenced to death. It is not a question of what his views and his information at the time were. It says "when capable of making a successful defence"; in other words, when the factors which come to light subsequently on a cold examination of the problem show that if he had fought on instead of surrendering he would have been able to make a successful defence.

In considering all these matters one ought to consider the fact that a person who serves in the Defence Forces and comes into the position of being a commander, whether it is a commander of a ship, of a unit, a defence establishment or an aircraft, in the ordinary way ought to be trusted to do what is right in his view in the circumstances of the action and of the time. I do not think that cowardice of the type that is mentioned here is typical in any way of the Irish as a race. Whether in our own experience in our own times, whether as soldiers fighting for other countries over many centuries and in many generations, this idea of not doing the proper thing is not applicable to the Irish race or to the Irish people generally. I see no reason why this threat of execution should be held out against our commanders, whether they are commanders of ships, of aircraft, of units or of defence establishments. Our history does not warrant such a section being in our Act, nor does it warrant such a section being introduced to it now. If we were the type of race that were inclined to be cowardly, that were inclined to let down our side, whether it is the military side, even the football side, or any other side, it might be different. I know of very few examples in which an Irishman lets down his side, either in the military organisation of his own country or any other country. It does sound very bad when we consider that of the tens of thousands of men born and reared in Ireland who have served in the military forces of other countries, as far as I know, no example of that type of cowardice or traitorous activity can be found.

If that is so and if we have no such examples in our own history, particularly in our own most recent history of the period of the Anglo-Irish War, why is it necessary to provide for conduct that is not typical of the Irish people or of the Irish race? If our Defence Forces were filled by a form of conscription, in which every citizen, whether he was of the Irish race or not, was obliged to serve, one might find some justification for some of the provisions, here and there, in this Act, but I can see no justification for the defamation of our own race that exists in this unnecessary section.

Sub-section (d) says that a commander "who, being in action, improperly withdraws from the action" may be tried by court-martial, sentenced to death and executed. The Minister, in this sub-section, proposes to insert the word "unjustifiably" instead of "improperly." That is, certainly, some improvement in the section because if "improperly" were to be left there, it would again be a matter of opinion. One group of people might think it was proper to do it; another group might think it was improper. But if the people who thought it was improper happened to form the court-martial, then he would be sentenced to death. However, if the provision reads: "who, being in action, unjustifiably withdraws from the action," again, to some extent, that is a matter of opinion; but, at least, it is stronger and requires more proof than the word "improperly" which it substitutes.

The next sub-section, which says that a commander "who improperly fails to pursue and enemy or to consolidate a position gained" introduces another of those problems which I have difficulty in visualising as far as we as a nation are concerned. The Minister proposes to alter that to read "unjustifiably fails to pursue an enemy or to consolidate a position gained." The average commander is a volunteer, as all our soldiers are. If he is under orders to pursue an enemy he will pursue them; if he is under orders not to pursue them he will not pursue them. But it is very seldom in modern warfare that you find the decision left entirely to the man on the spot as to whether he is to pursue or not to pursue.

Generally speaking, if an enemy is defeated, if the enemy flees, whether that enemy will be pursued or not depends on many factors. One commanding officer may take one view and another may take a different view, and from a purely military point of view both of them may be right. Apparently if the commander does not pursue the enemy he may be courtmartialled, whereas if he pursues the enemy when he should not it seems that he is showing courage which may amount to madness, may result in losing the lives of certain of his troops and may, in fact, endanger the whole plan of campaign that a superior authority had in mind. The peculiar thing is that there appears to be no offence in pursuing the enemy when the wise thing would be not to pursue him, but it is an offence not to pursue the enemy if some superior authority thinks that the enemy should have been pursued. If officers in command are to be subjected to that form of investigation, it will be very bad for the Defence Forces as a whole. A commanding officer who reaches the position where he has to make up his mind whether to pursue or not to pursue, may very properly say to himself: "If I do not pursue I may be court-martialled, while if I do pursue I will not." That is no position to leave a commander in. A commander must be a person appointed to that position because he is trusted to do the right thing. He is placed in that position because superior authority has confidence in his ability to do the right thing at the right time. If you subject him to these petty investigations, these post-mortems, with a court-martial when someone comes to the view that he should have pursued when he did not pursue, then one is completely weakening the sense of responsibility and the morale of the Defence Forces.

The second last point is: "and improperly fails to relieve or assist a known friend to the utmost of his power". What on earth does that mean? Even taking the word "unjustifiably"—"he unjustifiably fails to relieve or assist a known friend to the utmost of his power". What is a known friend? Known to whom? Does that mean a military friend or a civilian friend? What sex is included in the phrase? I do not know. I feel that death has very little sting for some of the people who drafted this section. Here it is, set out in black and white, that a commander may be court-martialled and sentenced to death for failing to relieve or assist a known friend to the utmost of his power. I do not think military authorities could be as blood-thirsty as that. It is completely at large. I do not know what it means. I would like the Minister to try to explain what is meant. Who is a known friend? Is a known friend another military unit and, if it is, why is it not said so? Is a known friend the commander or an officer or a soldier? What assistance is to be given to him? There are two offences here—he fails to "relieve" a known friend, or he fails to "assist" a known friend. Perhaps in Canadian law they have some interpretation of the phrase "known friend", but what does it mean to us? Does it bear the ordinary English meaning of the two words—or what does it mean? If its meaning is so doubtful that it cannot be understood or interpreted, why should the sentence of death be made the sentence that is to be imposed?

We come to the last one—a commander who in action "improperly forsakes his station". He may be court-martialled, may be sentenced to death and may be executed. What does "forsake his station" mean? That is what I am anxious to know. First and foremost, what is his "station"? I take it that it is where the commander ought to be, and it is the responsibility of the commander to decide where he ought to be, or is it the responsibility of somebody else to decide where the commander ought to be? That is one of the problems that confront me in regard to it. What does "forsake" mean? We know the lyrical meaning, but what does it mean in law, what does it mean in military law, what does it mean in regard to a commander in action? Does it mean that a commander is to have a particular command post and he is to stay there? And if he stays there, how is he, under another "Ireland Depends on You"? section, to encourage his officers and men to fight courageously? Is he to display at his mast-head signals I think that this section cannot stand up to any critical examination. I am critical of it because I think it is an unnecessary section, one which never should have been introduced into our military law, that should never be part of the statutory law of this country. It provides the sentence of death by military courts-martial for offences or alleged offences that are neither clear nor explicit. It offends against all our conceptions of the criminal law—and it will be part of the criminal law if it is passed.

I have proposed here that the section be deleted. As I have said, in England, the British army finds that it can do without a section such as that. It did not need it in the Boer War, the First World War or the last World War; it has not needed it in any of the campaigns that it has fought since, I think, 1861, almost 100 years. Why should we be playing with the provision of capital offences because the Canadians have it?

I ask the House very seriously to consider the section in all its implications and to impress on the Minister how undesirable it is to have such a section in our statute law; to impress on the Minister that the ordinary citizens of this State would be outraged if officers of their army were to be subjected to the death penalty for alleged offences that cannot be properly defined and that are based, to a large extent, on the opinion of the people who hear the charge. They are perfectly at liberty to hold these opinions. They may be right or wrong but, nevertheless, they are still opinions.

I ask the House to impress on the Minister that it would be entirely wrong to create such a series of capital offences that, if put into operation, could lead to the execution of many innocent men. There is no safeguard which you can create to provide against a slipshod provision such as this—a provision which has no application to our conditions, no application to the traditions of our race and no application to the known courage and military valour of our people.

Therefore, I ask the House to reject this section and delete it entirely from the Bill.

I propose to be very brief in my remarks on this particular section. I happen to have been a member of the Special Committee which discussed this Defence Bill some time ago. The suggestion was thrown out in this House that members of that Committee did not attend all the meetings and that, as a result, some Deputies felt they were entitled to continue the discussion here in this House after the Special Committee had finished. As far as I, personally, am concerned, I was not available for most of the time that that Special Committee met because I happened to be ill. For that reason, I had no opportunity of expressing my views on Section 123 of this Bill. It is because I consider this section to be a very grave and serious one that I take the liberty, at this late stage, of expressing my opposition to the inclusion of this section in the permanent legislation of this House dealing with defence matters. I think most Deputies have already expressed all that can be said, for and against. I do not intend to delay the House now except to put myself on record as opposing this section of the Bill and to give some reasons for the views which I hold in this connection.

I have ascertained, through the reading of reports of certain discussions that have taken place, that this particular section has been taken, almost word for word, out of a Canadian Act. I have no objection whatever, when new legislation is being drafted, to any Department of State selecting the best possible sections in legislation that has already been adopted in other countries, but I hold that we just cannot pick out sections here and there that may, on the face of them, appear to be sound and reasonable. I believe, myself, that a section such as Section 123 may be necessary in Canada. The fact, however, that such a section may be necessary and desirable in Canada is no proof whatever that it is either necessary or desirable here in Ireland where a completely different set of circumstances obtain and where we are dealing with a completely different type of people.

Deputy Cowan made one very telling point in his speech here to-night when he pointed out that our next-door neighbour, Britain, has managed to go through many wars without the need for a section such as this which we now propose to include in our permanent defence legislation. I am not a lawyer and I will not suggest for a moment that I have any skill in legal matters but I think that most of the offences which are now being dealt with in a rather general way in Section 123 are covered in Section 124. We have managed for the past 30 years—and that includes the period of the last war when the emergency existed here—to get along well with the provisions that are in Section 124. It is only now, in 1953, as a result of reading a Canadian Act, that somebody had the bright idea of saying: "That is excellent legislation. Why not include it in the permanent legislation for our Defence Forces?"

In Canada at the present time—and I am not being critical of the nation —I do not think you could pick out what could be described as a real Canadian. There is no such thing as a Canadian in comparison with an Irishman. Canada has no history like the history of this country in warfare. At the present time, she is absorbing into that great territory, ten, 12, 14, 16 different nationalities and trying to hammer them into one solid group to be called "Canadians" at a future date. It may have been necessary, therefore, in times of stress for a new and, if I may say so, raw nation like Canada to have legislation of this very harsh nature. As far as Ireland is concerned, "From Dunkirk to Belgrade lie the soldiers and chiefs of the Irish brigade". I do not think that any nation in the world will deny the great name which Irish soldiers of the past held. Our Army to-day is a volunteer Army. Our Army during the emergency was a volunteer or an emergency Army composed of young men who joined up with a spirit of courage and who were prepared to defend the freedom of their country to the very best and to the limit of their ability. If our Army could be described as a conscript Army or if every able-bodied man in this country were by law forced to give his services in the defence of the country then there might be justification—I am not saying there would be, but I am saying there might be justification—for a section similar to Section 123 of this Bill. But until we have the services, by law, of every able-bodied man in this country—some of whom may not be willing to give their services here in defence of the nation—I do not think a section such as this Section 123 should be included in our legislation.

It is very easy to pass legislation and very easy for us to say, as some Deputies have said already, that war is a brutal, sadistic business, and, having said so, to allow that to ease their consciences in voting for a section such as this, because there are no other grounds that will justify a Deputy in supporting Section 123, except that war is a brutal, sadistic thing and that hard and harsh things may and must be done, if a war is to be brought to a successful conclusion. To my mind, that does not give us the right at this stage to impose legislation of this nature, when for all practical purposes, safeguards are already provided in the next section, Section 124.

If we think so much of this country and if we are prepared to cast a slur on the officer personnel of our volunteer Army by bringing in this legislation, why are we not prepared to go the whole hog and see that every able-bodied man in the country is forced to do his duty to the country? If a country is worth living in, it is worth defending, and, if we think it is worth defending, we should have in our legislation the right to summon every able-bodied man to defend it. Having taken that step, it might then be considered whether a section such as Section 123 should or should not be included in the permanent provisions.

Our next-door neighbour came successfully through many bloody campaigns. She was put to the pin of her collar on many occasions, but she managed to come through successfully, without including in her defence legislation a section such as we have before us, and I see no reason why we cannot follow the example of our neighbour in keeping out legislation of this nature. We have no reason whatever in relation to a matter of this sort to go to Canada, because the circumstances there are completely different and consequently, though the section may appeal to military men as being ideal, we must take into consideration the backgrounds in Canada and in Ireland. If we take these matters into consideration, the House will not think twice about rejecting the section.

Major de Valera

One point has to be grasped in regard to this section. It is a point of distinction, and, unless we clearly grasp it, we cannot get the matter in perspective. It is that this section is applicable to active service, war-time conditions. Deputy McQuillan has said that it can be justified only on that ground, and I accept that. While I do not want to repeat the arguments put forward at the Special Committee, I should like to take the opportunity of reiterating openly here what I said about this section in the Special Committee. As it is already on record in No. 11 of the Special Committee Reports, it is unnecessary for me to go into it in detail, but the point is that if we were legislating for peace time, or even for peace time and war, very much of what has been said against the section would have such weight as to be coercive.

The difficulty is that you are dealing with war, which, as Deputy McQuillan said, is a brutal, primitive business and a question of force. In that situation, legal niceties just do not fit. If you attempt anything like over-definition, you will land yourself in the situation in which either the law is not workable, in which case it is completely thrown aside, or military operations are hampered by legal technicalities, with consequent danger to the community and, as always happens in such situations, their application will be found to be quite contrary to the spirit of what was intended. If we get that point clear, we have to ask ourselves whether a section like this should be in the legislation, for active service.

The question I would rather be inclined to ask about the section is whether it does not go too far in definition. On the principle that there is a higher responsibility on commanding officers, I should find no difficulty in agreeing, but whether it goes a bit far in defining particular cases of responsibility is another question, when you relate it to active service conditions. In answer to that, however, one would say that, because of what is in the section, it is probably better to limit it, and that the limitations are sufficiently wide to be adjustable to active service conditions, and in that case I personally would support the section. I have given my reasons in detail at the Special Committee.

The fact that capital punishment has to be provided for in war time is unfortunate, but I do not think one can get away from it. The responsibility of a commanding officer in wartime is very great, be he a general, a divisional, battalion, platoon or section commander. He has a greater responsibility and has a greater potentiality for doing damage, as some of us said during the discussions of the Special Committee. At columns 363 to 366 of the Reports of the Special Committee, some of us analysed the contents of this section in relation to a commanding officer and I think that analysis would substantiate the general statement that a commanding officer has greater potentialities for damage and greater responsibility and should carry a greater liability, so to speak, than people who are not commanding officers, and that, by reference to all that has gone before and to tradition in regard to the matter, the attachment of the penalty to the section is by no means a new departure.

Frankly, I find it hard to follow the case against the section, when one looks at it from the point of view of the soldier. I could understand it if somebody said: "Abolish capital punishment as a military punishment in war time," but, if that is said, a number of other things have to be weighed up. These, however, would be subjects for a separate debate Experience in military history to the present day points to the necessity for such a section to maintain discipline, and not only to maintain discipline but to ensure safety for the troops and the community behind those troops. The safety of the troops and the community behind those troops depends very largely on some such sections.

I do not want to repeatin extenso what we said in the Special Committee. I merely want to be taken as repeating all that I said on the previous occasion. Frankly, the reason I rise now is that, listening to Deputy Cowan and Deputy McQuillan, it might seem that nobody, apart from the Minister, was prepared to support the section. That does not happen to be the case in this instance. I simply rose to say that there were some of us in the Special Committee who, independently and for what we considered good reasons, thought that that section should remain. Our reasons are on record. The section was passed by the committee on that basis. There were other sections which we passed while we asked the Minister to amend or reconsider them, but this is a case where Deputy Cowan very definitely and, I think, one or two members of the committee had another view which I would have characterised as a legal view and to which I would have subscribed had it been in reference to a peace-time situation, but the remainder of us, looking at it from the point of view of active service and military necessity, felt this section should be passed.

I must say that I felt as if I was listening to a legal argument on the meaning of words——

So you were.

——as applied to ordinary legislation. It seemed to be forgotten that this section dealt with active service in war time. In normal times, I suppose, none of us would consider such penalties as are attached to these offences. But, as we have always had to do, even in the last emergency— and, as far as I know, in every country where war has broken out—one has to change one's attitude when war occurs.

It seems to me that there is no objection in principle to setting out what would be regarded as serious offences on the part of officers and the penalties that would apply to them. Not being a lawyer, I could not say whether the words there are the proper words legally but, as a layman, it seems to me that the argument made by Deputy de Valera just now that they were purposely left in that broad way was really the best because otherwise it would lead to legal difficulties and possibly the negation of the very objects which the section is put forward to achieve. It was argued this evening as if the death penalty would be applied in every case. Personally, I cannot see that happening at all. I could only see it happening in the most flagrant cases.

I can quite see that any court-martial of brother officers will consider what position the accused officer faces. They will put themselves in that position and say: "Would I have acted like that? If I had acted like that, could it be regarded that I was guilty of cowardice or that I involved my brother officers in danger or the men under me?" Just as with a jury in an ordinary case, the officers concerned on the court-martial would be even more anxious to give the benefit of any doubt to the officer accused and if driven to the belief that he would be guilty of some offence, but not in the full flagrant sense as set out in this section, they would certainly impose a lesser penalty than the death penalty.

It is to my mind necessary that the death penalty should be provided for the flagrant case. It might never happen, but it could happen that some of those things would be done flagrantly and would lead to disaster not for the one man concerned, as would happen in the case of an execution after a court-martial, but possibly for thousands of people who depend on his acting as he is expected to act, as a military officer.

If I understood Deputy Cowan correctly, he also said that this should be framed from our experience, that the other old Act had been quite good enough for the 30 years it was in existence. I for one hope that it will be a good deal longer than 30 years before we deal with a section like that from experience. I think we can only in this case look ahead and see what could possibly happen and try to provide therefor. I certainly see no objection to the section in principle and I am prepared to support it.

I thought the Minister might speak before I addressed myself to this section. We have had a long and extensive examination of the section by Deputy Cowan. I approach it in a very simple way. Leaving out the punishment, do the various sub-sections as framed here show offences in war time? If they do not, then they should not be there. But if they do, then the question of the penalty is a matter that can be very easily dealt with. Deputy Cowan's whole case was, what was the offence, how was it to be proved, and what defence was open to the accused? There is something to be said for the point of view he expresses, that in the opinion of certain people certain things may be offences and that it is according to the opinion of senior officers that a person will be said to have committed an offence under one of these sub-sections.

A court-martial will be composed of officers of the Army of which the accused is a member. A court-martial, let us hope, will never be held by officers of another army on officers of our Army. Therefore, we have to take it that when an accused, under this section, is charged with an offence under any of the headings he will be tried by his peers, by his own comrades and, as Deputy Colley pointed out very properly, they will be able to say to themselves: "There, but for the grace of God, stands myself in the dock." They have to keep that in mind.

This section is intended for war time when the Army is on active service, and even in the 30 years or so during which this State has been established occasions have been known on which there was not a very valiant effort made to bring men into action or to use their best endeavour to defend a post that had been surrendered, and so on. Suppose there was no means in war time of punishing them for that offence. In modern warfare, aeroplanes and modern weapons are extensively used. It has been well established that during the last war, when some officers were instructed to go into action with their planes they bumped them on the ground and never went into action and the only offence they could be charged with was destruction of Government property. When you consider that the destruction of Government property can run as far down as destruction or tearing of a blanket, you can see exactly what punishment could be meted out to the person who is ordered to go up with a valuable plane in the country's defence and, instead of taking it into action, bumps it on the ground and is charged with damaging army property. You are told that there is to be no difference between that offence of damaging army property and the banging of an army plane and refusing to go into action.

I am not going to take the view that a commander of a ship of our present size would be court-martialled by any Minister here because he did not tackle 20 or 30 men-of-war ships. I said before that if that stage arrived here the best thing he could do was not to engage them and that Deputy Alfred Byrne should be sent out to welcome him in and shake hands with him. But, with the new conception that we have now of our national defence, the defence of this country will be undertaken in a certain way and upon individual commanders will rest the responsibility of deciding when they should go into action. If it becomes well known that a military commander failed to go into action when he should have is he to be patted on the back and told: "You were right not to go into action?" If he is charged under this section, there will be reasonable evidence to prove that he was unfaithful to the trust that this nation and this Parliament put in him. If we have to defend this country in a war it will be more or less by the guerilla or commando method. Nobody will say that it will be different from that. Therefore there will be responsibility upon individual commanders to take their units into action and, to use the phrase in the section, to use their best endeavour to get the officers and men under them to fight courageously in defence of this country in the way that Deputy McQuillan wants them to fight.

If you have conscription, it is true that we could have people with various views. But, even in the voluntary Army during the last emergency, is it not well known that there were members of that Defence Force with various views? Under the old Act, if one took a different view from that of his senior officers, except you were able to bring him under some of the existing sections of the 1923 Act, as amended up to date, it would be very hard to deal with him properly. This section visualises a future in which there will probably be conscription and it is not then that you can start to amend the Act because of the introduction of conscription. This is permanent legislation to deal with all sorts of situations which may arise and I am sure the Minister will give his definition of the "known friend" and what exactly is meant there. I think everybody understands just what is meant by that.

I do not think so.

Having been so long fraternising with the Party that the Deputy is now supporting, he should know just what it means exactly. In the event of an invasion of this country, if there are "known friends" assisting and a commanding officer says: "They were our enemies in the past and we will not fight with them", and he deserts the "known friend", what is going to happen? I would rather the Minister would deal with this matter because he can do it better than I can. This section is not my responsibility, nor, I think, is it the responsibility of my successor, nor, perhaps, of the present Minister. The section is designed for a war emergency and the conditions likely to obtain if we were ever invaded. It will be there and will be of some value to the people. Should the death penalty be provided for? I think it should. There is a great saving clause in the section that the officer who is convicted by court-martial shall be liable to suffer the death penalty or any less punishment awarded by the court-martial. He could be fined 2/6 or ten days C.B. The maximum penalty is provided to show that the nation and the Government regard the offences as serious.

If I had intervened immediately after Deputy Cowan spoke I would have prefaced my remarks by saying: "Let us get back to earth." Rightly or wrongly, I suspect that Deputy Cowan decided to deal with this particular section from the point of view of ridicule and that he hoped he would perhaps damn it from that point of view.

Deputy McQuillan referred to the fact that this section was based in the main on the Canadian Act. It is to a great extent based on that, but the Canadians were through two wars in which they were operating as allies of the British and it took them quite a considerable time to amend their Act. They amended their Act because they thought it was necessary to do so as a result of the experience of those two wars.

I do not know whether or not I am misinterpreting Deputy McQuillan but he seemed to think that up to this there was no question of the death penalty in the Defence Forces Act. If he is thinking in those terms, he is wrong because in Section 32 of the Defence Forces (Temporary Provisions) Act, 1923, there is a provision which deals with a number of actions with which I would have loved to have heard Deputy Cowan dealing.

Do not goad him because he has Section 124 to deal with.

I can imagine the way in which he would have wallowed in that. Section 32 of the Defence Forces (Temporary Provisions) Act, 1923, states:—

"Every person subject to military law who commits any of the following offences, that is to say:—

(1) the offence of unjustifiably surrendering, yielding or abandoning any garrison, guard, place, post or position which it was his duty to defend..."

I could imagine the Deputy expanding on "yielding" and asking all sorts of questions as to what it meant and what "unjustifiably" meant and what was the difference between "surrendering" and "abandoning".

Paragraph 2 says:—

"The offences of endeavouring in any way to persuade, induce or compel any person subject to military law to commit the offence specified in the foregoing clause..."

The Deputies who have been listening to Deputy Cowan could imagine him parsing "persuade, induce or compel." The section says that such person "shall on conviction by court-martial be liable to suffer death or such less punishment as is in this Act mentioned."

We are trying to be as realistic as possible. We are dealing with active service. The point I want to impress upon the House is that "when ordered into action" would be the governing words. Who orders him into action? It must be his superior authority. Somebody must be superior to somebody else. If an officer is ordered out by his commanding officer and if his commanding officer is carrying out the orders of his Chief of Staff and if the Chief of Staff is carrying out the orders of the General Commanding the Forces, no one will defend the situation in which the officer fails to carry out these acts that the Deputy has been ridiculing. Surely nobody would say that that officer was right and that his superior officer was wrong.

I would point out to Deputy Cowan and to the House generally that while the death penalty is provided for in the section, it is the maximum penalty, and there are very many other penalties which can be awarded. Deputy MacEoin has pointed out that the officer will be tried by a court-martial composed of his colleagues, one of whom will be not lower to him in rank. There will be five officers, a judge advocate, and so on. The officer will be fully protected. It will have to be fully proved that the crime merits the death penalty before the death penalty can be awarded. There is an appeal against the death penalty, and I am pretty certain that an appeal would be very seriously considered by the authorities to whom it is made. I want to impress upon the Deputy and on the House that as a result of a conviction one life may be lost. There might be a greater casualty list brought about by the failure of the officer to carry out his duties. It could be possible that a very large number of lives could be lost through the failure of the individual officer to carry out his instructions. I put it to the House whether the death of one individual as a result of trial for such an offence or the greater loss of life because of the failure of an officer, perhaps irresponsibility, to carry out his duty is the more serious. As far as I am concerned, I would be prepared to stand over the death sentence on any man who failed to carry out the duties which were imposed upon him. I move the adjournment of the debate.

Debate adjourned.