Dáil Éireann debate -
Thursday, 25 Mar 1954

Vol. 145 No. 2

Defence Bill, 1951—Report Stage (Resumed).

Discussion on the following amendment resumed:—

In page 106, to delete Section 240, lines 1 to 39.

Captain Cowan

When the Dáil adjourned last night I had been dealing with the proposal to delete Section 240 which in effect gives power to District Courts to investigate charges against members of the Reserve for purely Reserve offences, such as failing to appear at the place of parade without reasonable excuse or using threatening language or behaving in an insubordinate manner to a person who, if both were subject to military law, would be his superior officer. Apparently if in the course of a football match between two teams a person who is a private in the Reserve behaves in an insubordinate manner to another footballer on the opposing team who is a corporal or a sergeant or of higher rank in the Reserve, that man under this section could be subject to investigation by a District Court and the reservist could be fined up to £25.

Similarly, a reservist who answered a notice in regard to the Reserve in a manner that might be considered insubordinate or who did not comply with Defence Force regulations can be brought before a District Court and can be fined a sum not exceeding £25. The section additionally provides that he may be taken into military custody or he may be, on the directions of an officer, taken into the custody of a member of the Garda Síochána. I made the case last night and I just repeat it now for the purpose of concluding what I have to say on this section, that if the Minister finds it necessary, or if the Army authorities find it necessary, to deal with the Reserve in this way, I think it is a confession that all is not well.

The Minister last night dealt with the difference in Britain between a volunteer army and a compulsory service army. In this case, we are dealing with volunteers, with young men who are delighted to be part of the defence machine of the country, young men who volunteer their spare time to make themselves proficient as soldiers and who are proud to serve in the Reserve in whatever rank their abilities fit them for. I think a very poor opinion is held of these men when it is considered necessary to treat them like petty offenders in the District Court. In a volunteer force, such as our Reserve, we want that Reserve to be manned, as it is, by the very best types of our young citizens. We want them to be there on the basis of giving voluntary, patriotic and national service. We do not want to have them serving in the manner that, having signed a form of enlistment, they can be subjected to this type of petty pin-pricking.

If you get a decent young boy down the country who is a corporal or a private in the Reserve, and you bring him up in the District Court, that, as far as he is concerned, is the end of his Reserve service, and that, as far as his friends and neighbours are concerned, is the end of the Reserve. When a man joins the Reserve, let us deal with him when he is subject to military law, under the provisions of military law, by the military methods that are laid down in this Act, but I think it is humiliating to the Reserve, as such, and is humiliating to the Defence Forces, that he should be subject to being brought before the District Court and liable to a fine of £25 for being absent without reasonable excuse from a parade or for acting in what is considered to be an insubordinate fashion under the section. This section supports the view that I have about many other sections in the Act, that it has not been viewed from the point of view of a modern 1952, 1953 or 1954 Bill. It is the oldest type of old provision that was associated with the very old militia of our young days, and I do not want to see it incorporated in this new Bill.

Mr. Traynor

I am sure that Deputy Cowan has spoken for almost half an hour on this already. I must say that I am more than astonished at the case that he has been making in this respect. If he wants to injure the recruiting campaign there is no better method of doing it than the method that he has adopted in discussing this Bill, and especially this particular section. He has made misstatement after misstatement in the course of the discussion on this. I find it very difficult to sit here and listen, without interrupting continually, while he has been making these misstatements. He talked about the soldier on the football field, of the private coming up against the sergeant and of the sergeant taking it out of the private because of something that happened. If the Deputy had studied the section he would see that paragraph (b) provides that:—

"Where a reservist uses threatening or insulting language or behaves in an insubordinate manner to any officer or non-commissioned officer who, in pursuance of Reserve Defence Force regulations, is acting in the execution of his office"

and not on a football field. He would not be acting in the execution of his office if he was playing football, nor would he be acting in that capacity if he was having a drink in a "pub," as the Deputy suggested two of them might be, a private and a corporal. There would be no question then of his acting in the execution of his office. This, undoubtedly, is intended where reservists are being called up, where a corporal is acting in some statutory capacity under which rights are conferred on him by reason of the fact that he is acting under this particular sub-section. It astonishes me to hear the sort of case that is being made by the Deputy. It is not that he does not understand the Act because I am sure he does. It surprises me, and shocks me sometimes, when I hear that sort of case being stated, a case that has no relation whatever to the facts.

This matter also was discussed at great length in the Special Committee, as most of the other sections were. Arising out of the discussions that we had there on this particular section, I undertook to bring it to the attention of the Army authorities and I did so, and the Army authorities were insistent that it should remain. The Army authorities that I am referring to are not the enemies of the rank and file and, as far as I know them, have never been. But, listening to Deputy Cowan on this, one would think that there was one group continually at war with another, one section endeavouring to hurt another section, but that is not so.

Furthermore, this section has been in the Act since 1923. The only paragraph that is new is paragraph (c), and the paragraph relating to trial by a civil court instead of either by court-martial or a civil court. When Deputy Cowan was speaking last evening he talked about reservists from Ballydehob or Ballinalee being called up to attend a parade at 20 hours, which is normally 8 o'clock. Lest by any chance anyone might read into that that this affects the F.C.A., I want to emphasise the fact that it does not. The F.C.A. is a voluntary body which comes up for weekly, monthly or periodic training, as the case may be, and it is only if they were called out on permanent service that they would be affected by this.

Captain Cowan

Is what the Minister is saying now in the Act?

Mr. Traynor

I am not saying that. I am saying that it does not apply to them. If the Deputy was attempting to imply that it did, I am trying to correct that. That is all that I am saying. It does not, in fact, apply to them. They are only on service when they go into their halls to attend a parade or something like that. I appeal to the Deputy to moderate his language in relation to this particular Bill. It has taken me by surprise that this section should be selected by the Deputy for such a long attack. Anyone who reads the section will see that it would be practically impossible for the Army to carry on if some such section was not there. It is not because there is anything wrong with the Army—and the Deputy has suggested that there must be something seriously wrong—that this provision has to be included; the Deputy knows himself there is nothing seriously wrong. The Deputy knows, as I know, that the cases of this kind that have taken place over a long period of years are very few in number—so few that it would almost seem unnecessary to put the section in; but, nevertheless, the section must be there to provide the means for dealing with the few cases that might occur. That is all that has taken place here. I would recommend Deputies who have listened to this discussion to read Section 240 and read Deputy Cowan's speech in conjunction with and in juxtaposition to the section and they will see how necessary my remarks have been in relation to his speech.

Captain Cowan

The Minister has a happy knack of avoiding the main issue. The main issue in this instance is whether it is right that persons who join the Defence Forces as volunteers in order to serve the Reserve section of the Army should be subjected to being brought before a District Court and fined a sum of £25 for failing to attend a parade. The Minister has avoided that issue. Why should such an individual be brought before the district court? That is my objection.

Mr. Traynor

Why should the Deputy have to bring it up now after almost 30 years?

Mr. O'Leary

Did it ever happen?

Captain Cowan

That I do not know.

General MacEoin

That is not a good argument: because it has been there for a long time is not a sound argument for retaining it.

Mr. Traynor

Is the Deputy in favour of wiping this out?

General MacEoin

There is a good deal to be said against bringing a reservist before the District Court.

Mr. Traynor

I am merely asking the Deputy a question. Is the Deputy in favour of wiping this out?

General MacEoin

I am in favour of dealing with an offender against military law through the medium of a court-martial. Because he fails to turn up at a parade, I do not think it is wise to haul him before a District Court.

Mr. Traynor

He is a reservist.

General MacEoin

I know he is.

Captain Cowan

The Minister says this provision has been there for 30 years. The Minister must realise that the Reserve established under the 1923 Act was a different type of Reserve from that which will be established under this measure. Under the 1923 Act the Reserve consisted of the Reserve of Officers and the Reserve of men. The Reserve of Officers was composed of those officers who had retired from the permanent forces on pension at the end of their service and it was part of their obligation as officers on pension that they would be subject to recall until they reached a certain age. The Reserve of men under the 1923 Act was limited to soldiers of the Defence Forces; it consisted of non-commissioned officers and men who, having served in the forces, were transferred to the Reserve in pursuance of Part II, Chapter V of the 1923 Act. They were men who joined originally for a certain period in the Army and in the Reserve and, at the expiration of their period of regular service, they were transferred to the Reserve in accordance with their original contract. They were in receipt of some form of pension and some form of pay. Now this Bill introduces a different type of Reserve altogether, namely, the men who join the Reserve direct or the F.C.A. I understood that the F.C.A. was part of the Reserve.

Mr. Traynor

Second Line Reserve.

Captain Cowan

But they are part of the Reserve?

Mr. Traynor

Yes,

Captain Cowan

As reservists, they are subject to military law.

Mr. Traynor

If called out on permanent service.

Captain Cowan

They are subject to military law as reservists. When they wear uniform they are subject to military law under this measure. I am dealing with what is in the Act, not what is in the mind of the Minister or in the minds of those who advise him. This measure says they are subject to military law. It says further that if they do not attend a parade they can he brought before the District Court. I do not think that provision should appear in this Bill. There is a completely new conception in relation to the Reserve abroad now but, although that new conception is there, the old sections which related to the old militia have been superimposed; the idea behind the new Reserve is forgotten but the punitive provisions are there. The Minister asks how can we run the Reserve without them? If the Minister or anybody else brings a reservist up in the District Court for failing to appear on a parade he will destroy the Reserve. This provision should not appear in this Bill. The Minister says my criticism in relation to a football match or a public-house is exaggerated.

Mr. Traynor

It is not in conformity with the section anyhow. The Deputy should read paragraph (b).

Captain Cowan

I have read it and I have interpreted it in the form in which I know these things have been interpreted. The words "acting in the execution of his office" are put in. What do they mean?

Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present,

Captain Cowan

I was making the point that the operation of a section such as this would destroy the Reserve. Therefore, wisdom would suggest that it should not be in the Bill.

Amendment put and declared negatived.

Captain Cowan

I move amendment No. 178:—

In page 106, Section 241 (1), line 43, to delete "as may be allowed in the prescribed manner".

This section deals with the non-attendance of a reservist called out for training or on permanent service. It says:—

"When a reservist is called out for training or on permanent service or in aid of the civil power, and such reservist, without leave lawfully granted or such sickness or other reasonable excuse as may be allowed in the prescribed manner, fails to appear at any time and place at which he is required upon such calling out to attend,"

he may be guilty of desertion or absence without leave and he may be subject to be tried by court-martial or by a District Court and he may be punished as provided in the section. I object to the words "as may be allowed in the prescribed manner". If he is absent owing to sickness or has any other reasonable excuse that should be sufficient for the court. But, again, the provisions of the Bill are pushed to the extent that, even if he has a reasonable excuse, unless it is an excuse that has been laid down in regulations as being acceptable, then it is no defence in a court of law.

I do not want the Minister to say that I am exaggerating in regard to that or any other section. Here we have a case where a man is sick or he has a resonable excuse for not attending, an excuse that the court trying him would consider reasonable, but unless that excuse has been laid down in regulations beforehand as a prescribed excuse it cannot be taken into account in his defence. I should like to see the Minister or anybody else telling a district justice that that was the Army law which he had to apply, that even though the defendant before the court had a reasonable excuse it was not a reasonable excuse prescribed by the Minister and therefore the court could not take it into consideration. As I say, it is another of these sections which show that the rules of law and the principles of justice have meant nothing in the drafting of these sections.

Mr. Traynor

This is another of the sections which I undertook to have examined. I did examine it from the point of view of the words to which the Deputy objects, "as may be allowed in the prescribed manner". On looking into that I felt at the time that unless there was some clarification somewhere that difficulty would arise. But, when I did get down to examine the matter, I found that what would happen is that the type of illness or other excuse which will be regarded as justifying the non-attendance will be set out in the regulations. It will be made clear to the persons concerned what a resonable excuse for not turning up will be and I think that that should meet the objection which the Deputy has stated. It will be clearly set out.

Captain Cowan

I must say that whoever drafted that section and put in these words deliberately endeavoured to get across the principles of law or knew nothing about the principles of justice, because in any case that comes before a court the court is always given a discretion, if a man has a reasonable excuse, to deal with the case on that basis. But this says that it does not matter two hoots if you have an excuse that the court may consider reasonable, that it is no good unless it is laid down in the regulations that that excuse is to be accepted. I do not know what sort of regulations will be laid down. Is it to be prescribed that if a doctor thinks a man is unfit to travel that is a reasonable excuse? Is it proposed to lay down this type of illness, that type of illness or the other type of illness? The whole thing is absurd. If a man has a reasonable excuse, then that is his defence; but to try to say: "Your defence is very reasonable but you are suffering from this new disease caused by dust falling from an atomic explosion and we have not provided for that and therefore it is not a reasonable excuse," is absurd.

Amendment put and declared negatived.

Captain Cowan

I move amendment No. 179:—

In page 107, Section 241, to delete sub-section (3), lines 1 to 5.

That sub-section says that:—

"Any offence committed by a reservist which under this section is punishable on conviction by court-martial shall for all purposes of and incidental to the arrest, trial and punishment of the offender, including the summary dealing with his case by his commanding officer, be deemed to be an offence against military law."

Again, we have laid down when is a person subject to military law. We have laid down a whole schedule of offences in the Act, and in case there might be some escape we find there are very peculiar provisions inserted. The section as a whole provides that absence may be desertion or absence without leave, that is if he is called out on permanent service or to the aid of the civil power, if he does not turn up it may be desertion or absence without leave; and if called up for training he will be guilty of absence without leave. Then it says that he can be tried either by court-martial or by the District Court. That is followed by this sub-section.

First and foremost, in the earlier part of the section, they provide that he can be court-martialled. In case they might have any doubt as to whether it was an offence against military law he committed, then they put in this clause making it an offence against military law, as well as being an offence against civil law. I think it is wrong that that sub-section should be in, and I am opposed to it being there.

Mr. Traynor

I cannot accept this amendment. The section provides that reservists who fail to come out when called may be tried either by court-martial or in the District Courts. If they are tried by court-martial, the offence must be capable of being deemed an offence against military law, so as to give jurisdiction to the court-martial and as a natural consequence to summary dealing by the commanding officer. This is another of these questions which I discussed with the military people concerned, and they were satisfied that this particular section, the section in general, would be required. I might point out to Deputy Cowan and the other members of the House that the section is identical, or almost identical, with the section in the 1923 Act. It is made up of a number of other sections in the 1923 Act and they are brought together into this section, which is now 241.

Amendment put and declared lost.

Captain Cowan

I move amendment No. 180:—

In page 107, Section 241, to delete sub-section (4), lines 6 to 10.

This amendment is to delete the following sub-section of the same section, which says:—

"A person charged with an offence which under this section is cognisable both by a court-martial and by the District Court, shall not be liable to be tried both by a court-martial and the District Court, but may be tried by either of them as may be directed by the prescribed military authority."

The prescribed military authority can say: "This man is to go before the district justice" or "This man is to go before a court-martial." Again, the matter is being pushed to what one might term the logical extreme. If he is subject to military law he may be tried by court-martial for this purely military offence, but do not be sending him out to the District Court, and certainly do not be giving a military officer the right to order that a reservist be tried in the local District Court, because it is completely contrary to our concept of how people are brought before a district justice, on a charge or on a summons, that you have military officers directing that a case be tried by the district justice. I think this is very wrong.

Mr. Traynor

I might inform the House that it is not the practice to charge reservists who failed to come up for annual training; but I presume this is an effort to anticipate a difficulty that might be likely to arise. My information, anyhow, is that it might be possible that a very large number of men would fail to respond to the call-up, and then, if that should happen, the question would arise: "How can they be dealt with?"—and it is felt that it would be more feasible to deal with it in this manner, by either dealing with them through the civil court or, if it was possible, by a military court. As far as I am aware, anyhow, the section is merely to ensure that it will be possible to deal with that if it should ever happen that a large number would refuse at any one time to come up together.

Captain Cowan

The Minister, of course, can see a very grave objection to it. It depends on who is being charged. If a man is guilty of desertion and brought before a court-martial, a court-martial is always very severe in a matter of desertion; but if you want to let him off, you send him down to the District Court and it may give him a fine up to £25. A court-martial may send him away for a couple of years' imprisonment if the situation was serious; but if some prescribed military authority, for one reason or another, wants to let the man off, he sends him down to the district justice who, probably, will fine him 10/-.

General MacEoin

Five shillings.

Captain Cowan

Yes, 5/-.

Mr. Traynor

Deputy Cowan knows that that is happening every time there is a call-up—that men who are called up fail to turn up and nothing happens. They are not charged. They are not brought before a civil court or a military court. We are trying to foresee something that has not happened yet. All I am pointing out to Deputy Cowan is that, at the present time at least, when reservists do not turn up they are not prosecuted. Nobody goes after them, or anything like that.

Amendment put and declared lost.

Captain Cowan

I move amendment No. 181:—

In page 107, Section 243 (b) (ii), lines 47 and 48, to delete "tried may, whether it convicts him of the offence or not" and substitute "convicted shall order him to return the article to the Minister or in default may order him to pay to the Minister the value of the article."

This is a very small amendment and I do not think that there can be very much objection to it. The section deals with the wrongful sale of equipment by a member of the Reserve Defence Force. It provides that if any such person fails to deliver up an article to the Minister, he shall be guilty of an offence and liable to a fine not exceeding £5. There is then the addition that the court by which he is tried, whether it convicts him of the offence or not, may order him to pay to the Minister the value of the article. That is certainly going very far. I only wish that some of these cases would come before the District Courts at some time so that we might have some pronouncement on them from the district justices. The proposal is that where a man is charged with making away with an article, whether the court convicts him or not of the offence, it will have power to order him to pay the Minister the value of the article. My suggestion is that we should insert instead the provision that the court by which he is convicted "shall order him to return the article to the Minister or in default may order him to pay to the Minister the value of the article." In other words if the district justice finds he has the article or has made away with it, the court convicting him may order him to return that article to the Minister or pay the Minister the value of it. In addition a maximum fine of £5 is provided. It seems to me that it is monstrous to write into the section that whether the court convicts him or not, it may order him to pay the value of the article. You might get a mad district justice who would do a thing like that but I do not think that we should make provision for a district justice who happens to be non compos mentis.

General MacEoin

It does appear on its face to be a rather peculiar provision that if a person is found not guilty of the offence, we may say to him: "Whether you took it or not, you have to pay for it." I agree with Deputy Cowan that it is rather farfetched to suggest that a district justice would order payment to be made for the article, after finding a person not guilty of having destroyed it or having done any of the things that are mentioned in the section. I should like to hear the Minister give some reasons as to why such a provision is included.

Mr. Traynor

First of all, we must remember that we are dealing here with public property, for the protection of which every one of us is responsible in varying degrees. At first glance, the position may seem to be as Deputy Cowan has put it, a position about which Deputy MacEoin also seems to have some doubts. The situation, as I conceive it, is that when a case of this kind comes before the district justice, the district justice generally realises that he is dealing with a decent type of man, a man of some character and the property missing may not be value to any great amount. He may then decide to let the man off but there is no means of getting compensation for the missing article. The district justice in the goodness of his heart says: "That is all. Go off now and do not do it again."

General MacEoin

The district justice should go the whole way then and not allow him to be penalised for the value of the article.

Mr. Traynor

That illustrates the type of case that could possibly arise. I do not know whether it has ever happened or whether we can produce any precedents for this proposal but this clause is brought in to meet cases where the man charged may be a decent type of man. Whether, however, he be a decent type of man or a rogue, if the property is stolen or done away with, it is State property and so far as it is possible to get some compensation for the State, I think an effort should be made to do so. It is with that end in view that we want to have this section in the Bill.

Captain Cowan

While everybody should be concerned about the protection of property, whether it be public property or private property, I must say that if the man is not guilty of the offence of taking it or making away with it, there should be no question of giving the district justice power, even though he may find the person charged not guilty of the offence, to order him to pay the value of the article to the Minister. It is a very objectionable proposal and I regret that some of the distinguished lawyers we have as members of the House are not available to assist the Minister on such a section as this. This section applies only to a person who is a member or a former member of the Reserve Defence Force. I had a case one time concerning a former member of the Reserve who was living at home. Somebody checking up somewhere came to the conclusion that through some neglect of his several pairs of boots were missing and of course the Department of Defence, with their usual ideas about law and justice, decided to stop his pension to the extent of the value of the boots. It had to be pointed out to them very clearly and specifically that they could do no such thing. A provision like this put into the Bill gives me the impression that there is no respect or regard for law——

Mr. Traynor

Were the boots on issue?

Captain Cowan

They were on issue.

Mr. Traynor

They could not possibly be charged against him then.

Captain Cowan

This man had responsibility in regard to the boots. He was at home a couple of years when on some audit or investigation it was discovered that there was a deficiency or an apparent deficiency of a certain number of boots.

Mr. Traynor

That is different. That is the reason I asked the question if they were on issue.

Captain Cowan

I understand. I do not want to say anything that would identify the man. There was an apparent deficiency and the Army authorities said to themselves apparently: "It does not worry us whether we have the right to make a deduction from this man's pension or not; we are doing it." They wrote to him and said: "We are stopping your pension until all the boots are paid for." They were told just where they got off on that occasion. What I feel is that if this practice were allowed, this practice of deducting money from a pension whether the law allows it or not, or if they can come barefacedly into the Dáil with a provision such as this, that even whether the district justice finds a man guilty or not of the offence, he can still order him to pay for the article missing, it would be a negation of all justice. The whole idea appears to be that whether a man is right or wrong, guilty or innocent, he must pay up. I would ask the Minister not to leave the section in. It is an affront to justice and if ever a case should come before the District Court under it, the Dáil and everybody connected with it will be held up in a very sorry light. Let a judge of the High Court get at that and what will he say? I should feel humiliated in reading or hearing what a judge of the High Court would say about a provision such as this in a country which is supposed to be ruled by law.

What I suggest is very simple: if he is convicted, the court shall order him— I put it even more strongly—to pay the value of the article to the Minister. I am concerned about public property in the way in which I put it there, but I am concerned with it on the basis of law and I very strongly press the Minister to accept the amendment. The Minister said that the court might want to let a decent man off, but what happens always is—it happens every day of the week—that the justice says: "I will adjourn this case for a month or six months. Will the money be paid then?" I am aware of a case this morning which was adjourned a week ago in which three people had to pay between them a sum of £20. They paid it up to-day and the justice said: "Be good boys in the future." The court always uses its discretion and deals properly with all these cases. I am honestly ashamed of this section with this provision in it.

Mr. Traynor

I am not accepting the amendment, but I will have it reexamined.

Amendment, by leave, withdrawn.

Mr. Traynor

I move amendment No. 182:—

In page 108, to delete Section 245 (c), lines 18 to 20.

This amendment is moved in pursuance of a promise made in the Special Committee.

Amendment agreed to.

Mr. Traynor

I move amendment No. 183:—

In page 109, Section 246 (i), lines 55 and 56, to delete "or being a regulation or rule made by the Minister under this Act".

This amendment is to remove some unnecessary words from the section. I understand we will be able to deal with the matter through other means.

Amendment agreed to.

Captain Cowan

I move amendment No. 184:—

In page 111, Section 249 (1), line 5, to delete "or an absentee".

This section deals with the apprehension of suspected deserters and absentees and I seek by this amendment to have a couple of words deleted from both sub-sections—sub-sections (1) and (b) (ii) (1). The section provides:—

"Where an officer or man or a member of the Garda Síochána has reasonable grounds for suspecting that any person is a deserter or an absentee, he may without warrant arrest such person..."

Thereupon, certain provisions come into effect. Then follows the provision that such person may make a demand in regard to his arrest and, if he so demands, may be brought before a district justice or a peace commissioner and the district justice or peace commissioner shall inquire into the arrest, and, if satisfied that he is a deserter or an absentee, shall cause him to be delivered into service custody and in the meantime to be kept in a Garda barracks. There has always been a very big difference between desertion and absence without leave. Every soldier at some time in his career is absent without leave for either a short or a long period, but desertion is a different thing. It means absence with the intention of not returning to the Defence Forces or of escaping a particular duty. I do not want to go in detail into the definition, but the main thing is that there must be the intention of not returning. In other words, the person is absconding entirely from the Defence Forces or evading a very serious duty.

I have no objection to the provision in regard to deserters or suspected deserters, but to operate that provision against persons suspected of being absent without leave could cause the greatest trouble and annoyance, because if a soldier is out of barracks at 12.15 a.m. when he should have been in at midnight, he is an absentee without leave, and he may, without warrant, be arrested by an officer or member of the Defence Forces, or by a member of the Garda Síochána. The Minister will say that it is not intended to operate that provision but once it is put there, a Garda can arrest a man who he knows is at a dance without leave and can bring him before a peace commissioner or district justice and have him thrown into a Garda lock-up.

I see no necessity for this. It will cause a tremendous lot of confusion and it may be abused. If the Minister says it will not be operated and is not intended to be operated, I say: "Do not have it there." I have no objection, as I say, to the provision with regard to people who are deserters, or even suspected of being deserters, but I certainly have an objection to all that machinery in regard to a person who takes a couple of hours off without leave to go to a dance, to go for a few drinks, or to do one or other of the things that human beings, in their youth, are likely or liable to do. I ask the Minister to delete these words from the section.

Mr. Traynor

I should have thought that normally Deputy Cowan would have insisted on these words being inserted, if they were not there. I say that seriously, because the Deputy knows that the type of absence to which he refers arises every day and every night in the week, every month of the year and has been going on for years and years and will probably continue in the future. The case which this is intended to deal with is the case of the individual who, if he is away on furlough or on leave, overstays his leave by a considerable period. In these circumstances, the Garda in the district from which he comes are notified and they naturally will call on the individual if he is to be found at home. If he is at home, he will be apprehended and all that usually happens is that he is returned to his unit. Very often there is a reasonable excuse. There may be, perhaps, some family illness at home or something like that. That is held to be a reasonable excuse. I have known cases where, even after a man had been arrested and the facts reported, he was given extended leave in order to facilitate him in his home, the condition being guaranteed by the Garda of the district. So that, in effect, in this particular case the use of the word "absentee" ensures that the man will not be taken in as a deserter. If he is arrested as a deserter, he will certainly be tried by court-martial but if he is arrested as an absentee it is quite possible that all that happens is he is brought back to his base and the case summarily dealt with. If the case was such as I have stated the effects may be exactly as I have suggested that they are in a number of cases. I think the Deputy should withdraw the amendment.

General MacEoin

I think the provision is required but, of course, there is always the danger that it will be abused. I am aware of a person being arrested for being absent without leave by an officer who got a lift from the person he arrested. When he got to Dublin he got the man arrested and showed in. Of course, when the case was dealt with next day, the officer who accused the serving member was himself placed on a charge because he had counselled the absence without leave. It is that sort of thing which is a danger. The Provost Marshal or somebody else may know that a soldier is an hour or a half-an-hour absent without leave. He can subject the soldier to a grave indignity by having him arrested by a Civic Guard and brought before a peace commissioner.

On the other hand, I am perfectly satisfied that there is a very big number of cases where the leave is overstayed and if there is not some provision to deal with it the danger is that there would be many more who would overstay their leave. The temptation would be to say: "I can chance it." But, as I say, it is one of these things where there is no danger if it is dealt with in the proper spirit. But it would be very hard to deal with an absentee who is a considerable distance away or where there is no military post but for this provision so that the Civic Guard could be notified that Johnny White was absent for the past 48 hours, was at home and could be picked up. That is one of the ways in which that can be dealt with expeditiously. I feel that the police or the Army authorities must have the provision here.

Captain Cowan

This section deals only with serving officers or serving soldiers or persons who would be subject to military law on permanent services or otherwise. Taking it broadly in regard to members of the Defence Forces if a person is absent without leave he can be tried for that by his commanding officer or by his company commander or he might be court-martialled if the necessity arose. The usual punishment is a small fine but he forfeits pay for every day's absence. That is the usual punishment. It may be dealt with in that way.

Desertion is a completely different thing. When a person absents himself for a particular period, generally 21 days, a court of inquiry is held and that court of inquiry declares him to be a deserter, having received whatever available evidence there is in regard to absence. His kit is collected and whatever is collected is subtracted from whatever he should have and he is declared deficient of the remaining articles of military property on charge to him. When that machinery has been put into operation, the Guards are notified that such and such a person is a deserter. Then they have authority to arrest him as a deserter. There is no trouble about that.

But there is trouble about the person who is absent without leave for a short period, a day, a week or even a fortnight. If he is at home, the military authorities know his home address and they are entitled to go out and arrest him and take him into military custody and bring him back to the barracks. There is no trouble about that. The trouble arises in regard to this sort of civilian form of arrest, apprehending him without a warrant. An officer may see a man in the streets of Westport or some other town where there is no military post. He may know he is an absentee. He can go over, apprehend him and hand him into the custody of a member of the Garda who would put him in the lock-up. Then you have all this machinery put into operation. I do not think it is right that should apply to a person unless he is a deserter or a suspected deserter. I do not think these provisions should apply to a person who simply overstays his leave or takes French leave. I want three words deleted from the two sections:—"or an absentee".

Absence of the type I mention is never very serious and, in fact, it is not abused very much but you can have a considerable amount of humiliation placed on a soldier who just happens to be absent a few hours or a day or so if the provisions of this section are put into effect. I do not think that any other State force has this sort of provision. If a civil servant absents himself for a day or a couple of days or a week he does not have guards going round apprehending him, putting him in the lock-up or bringing him before a district justice. I am not too sure of what happens in regard to members of the Garda Síochána but I doubt very much if they can be summarily apprehended in the fashion that is here.

General MacEoin

They can get themselves fired.

Captain Cowan

They may get themselves fired. The soldier may be fired over it. He is subject to the very same risk. The civil servant may be fired over it but the strange thing about it is that we do not use these punitive measures to deal with the civil servant who is a public officer or the Garda in this humiliating way. We just keep it for the unfortunate soldier. I want to limit it to the fellow who commits the very serious and heinous crime of desertion or to the person who is suspected of desertion. I want the ordinary absentee treated in the same way as other public servants. That is why I put down these three amendments.

An Leas-Cheann Comhairle

Is the Deputy withdrawing the amendment?

Captain Cowan

No. Please put it.

Amendment put and declared negatived.

Amendment No. 185 not moved.

Mr. Traynor

I move amendment No. 186:—

In page 111, Section 250, to delete line 59, and substitute "a fine not exceeding twenty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and imprisonment."

An Leas-Cheann Comhairle

Amendments Nos. 186 and 187 may be taken together.

Mr. Traynor

I promised the Special Committee to go into this matter and it is now proposed to delete the last line in the first paragraph of Section 150: "imprisonment for any term not exceeding three months" and to insert "a fine not exceeding £20 or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and imprisonment". Amendments Nos. 186 and 187 are identical.

Amendment agreed to.

Mr. Traynor

I move amendment No. 187:—

In page 111, Section 251, lines 63 and 64, to delete "imprisonment for any term not exceeding three months" and substitute "a fine not exceeding twenty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and imprisonment."

Amendment agreed to.

Captain Cowan

I move amendment No. 188:—

In page 112, Section 253 (a), lines 18 and 19, to delete "or absent himself without leave".

An Leas-Cheann Comhairle

Amendments Nos. 188 to 193 deal with cognate matters and may be discussed together.

Captain Cowan

Substantially the same idea is in this section as in the last one I moved in regard to an absentee without leave. Section 253 provides, according to the side heading, for "punishment for inducing," etc., "members of the Defence Forces to desert." I have no objection in the world to that if it was limited to what is contained in the title at the side of the Bill. However, when we look at the section we find it says:—

"(a) procures or persuades or attempts to procure or persuade any person subject to military law to desert or absent himself without leave, or

(b) procures or persuades or attempts to procure or persuade any reservist to desert or absent himself without leave within the meaning of Section 241, or

(c) knowing that a person subject to military law is about to desert or absent himself without leave, aids or assists him in deserting or absenting himself without leave, or

(d) knowing that a reservist is about to desert or absent himself without leave within the meaning of Section 241, aids or assists him in so deserting or absenting himself without leave, or

(e) knowing any person subject to military law to be a deserter or an absentee, conceals such person or aids or assists in concealing him or aids or assists in his rescue, or

(f) knowing any reservist to be a deserter or an absentee without leave within the meaning of Section 241, conceals such man or aids or assists in concealing him or aids or assists in his rescue."

I have no objection whatever to these provisions being there in regard to desertion, but I think it is a bit too much to put into the section that, if the mother of a soldier who is absent for a couple of hours or days without leave conceals him when the military police come and puts him into the cupboard or under the bed, she should be brought up in court and fined a sum not exceeding £50. The same principle I referred to previously is involved here, and I am not going to waste time on it; but there ought to be some little sense in this regard. Provision ought to be made just for desertion and not for these simple absences without leave that we hear of every day of the week. The same point was made before: that it is a section which in so far as it may be applied to absentees, can be abused.

Mr. Traynor

If the matter were as simple as Deputy Cowan has stated, it would not be necessary at all to utilise the section. This section is the same as the section in the 1923 Act and I do not think it is operated in the way in which the Deputy has suggested. It stands to reason that the people with whom it is intended to deal are people who would deliberately incite a soldier to desert, not turn up at the end of leave, or something of that kind. It has operated over all the years and I do not think Deputy Cowan, myself or anybody else would be able to cite a case in which a mother was prosecuted for concealing her son or for inducing him not to turn up.

General MacEoin

This is the section in regard to which the Curragh officer was convicted for inducing the other person to be absent without leave.

Mr. Traynor

This is like a lot of the other sections in the Act that we have been discussing over the last few months. It is an effort to ensure that every leakage will be repaired, that there will be no possibility of not being able to deal with the type of person who would be likely to commit that type of act flagrantly, with malice, so to speak, knowing that he was inducing somebody to do one or other of these acts. It is not intended at all to deal with the mother, the wife or anybody like that.

Captain Cowan

I must say, as I said last night, that the Minister is most disarming when he takes up this attitude "it is not intended." It is our duty as the Dáil to ensure that the power cannot be exercised improperly by anybody. That is our duty.

Mr. Traynor

Lawyers are great men for precedent. A precedent of many years' standing has showed it never happened.

Captain Cowan

In the relevant section of the 1923 Act we had three sub-sections and they were never used. "Desuetude", I think, is the word that might be used in regard to them, but the Minister now gives them an injection of new life and makes six sub-sections out of the three. Then he says: "We had it in the 1923 Act, but we did not operate it." But it has grown from (a), (b), (c) to (a), (b), (c), (d), (e), (f). I think argument is of no use.

An Leas-Cheann Comhairle

Is the Deputy withdrawing the amendment?

Captain Cowan

No. Please put it.

Amendment put and declared negatived.

Amendments Nos. 189, 190, 191, 192 and 193 not moved.

Mr. Traynor

I move amendment No. 194:—

In page 112, to delete Section 254 (1) (a), lines 43 and 44, and substitute the following:—

(a) acts or purports to act as a recruiter or a person authorised to enlist recruits, or

In the Special Committee, this section was described, I think, as being archaic. This is an effort to meet that point and to bring it up to standard, so to speak.

Captain Cowan

It does not go as far as we want, but we will agree to it.

Amendment agreed to.

Mr. Traynor

I move amendment No. 195:—

In page 113, to delete Section 257, lines 46 to 52, and substitute the following:—

Where regulations made by the Minister under Section 97 provide for proving, by statutory declaration, the identity of the recipient of any payment under the regulations, such declaration may be taken and received by any person specified in that behalf by the regulations.

This is another of the Special Committee points. The amendment proposes the introduction of a new section which differs from the existing one in that no reference is made to the taking of an oath or to perjury. I undertook at the Special Committee to introduce this amendment.

Amendment agreed to.

Captain Cowan

I move amendment No. 196:—

In page 114, to delete Section 258 (3), lines 45 to 55.

This section deals with the penalty for any person who purchases certain military property. Military property is given the very widest definition. It includes:—

"(a) any arms, ammunition (including bombs, grenades or similar missiles), equipment, instruments or clothing issued for the use of members of the Defence Forces, or

(b) any military decoration of a member of the Defence Forces, or

(c) any furniture, bedding, blankets, sheets, utensils or stores in military charge, or

(d) any provisions or forage issued for the use of a member of the Defence Forces or his horse, or (e) any horse or vehicle employed in the service of the Defence Forces."

That is military property. Then, if any person—

"(1) buys, exchanges, takes in pawn, obtains or receives from any person, on any pretence whatsoever, any military property, or

(ii) solicits or entices any person to sell, exchange, pawn or give away any military property, or

(iii) assists or acts for any person in selling, exchanging, pawning or making away with any military property,

such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £20 together with treble the value of any military property of which he has become possessed by means of the offence or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment."

I was just wondering what the treble value of a military decoration would be—but I suppose that is for the future. The section says:—

"Where a person is charged with an offence under this section it shall be a good defence to prove that—

(i) at the time he did the act alleged in the charge, he was unaware that the property in respect of which the charge was made was in fact military property, or

(ii) the said property was sold by Order or with the consent of the Minister or some competent military authority, or

(iii) the said property was the personal property of a person who had ceased to be a member of the Defence Forces or of the legal personal representatives of a deceased member of the Defence Forces."

Obviously these would be and must be good defences. The section continues with sub-section (3)—and this is the sub-section I want to delete, along with sub-section (4):—

"(3) Where any military property is found in the possession or keeping of any person, such person may be brought or summoned before a justice of the District Court, and if such justice has reasonable ground to believe that the military property so found was stolen, or was bought, exchanged, taken in pawn, obtained or received in contravention of this section, then, if such person does not satisfy such justice that he came by the military property so found lawfully and without any contravention of this Act, he shall be liable on summary conviction to the same penalties as are specified in sub-section (2) of this section in the case of a contravention of that sub-section."

In other words, the law as we know it is not good enough when the Department of Defence operates. It is not the ordinary case of someone proving that a man is guilty. We have the provision here that the man must prove he is innocent. That, again, is contravening one of the fundamental principles of ordinary justice, that if you allege a man is guilty of an offence you must prove he is guilty of it before he can be convicted. In all such cases, the jury is warned and it is the practice of judges, in the case of doubt, to give the benefit of the doubt to the accused. Why should we, in respect of a soldier's blanket or sheet, change the fundamental principles of law? There is adequate law—the law of larceny, the law of receiving an article knowing it to be stolen or otherwise unlawfully obtained. In regard to "buying, exchanging or obtaining," as in this section, there is plenty of law at present. Apparently in the Defence Forces we are not satisfied unless we upset every known principle of law. I hope some jurist one day will examine this Bill and write an article or thesis on it and show it up in its nakedness for what it is. Every principle that we have established in regard to law, and every principle of law in regard to criminal charges, is thrown overboard. It says here that if any military blanket, or something alleged to be a military blanket, is found, you must prove that you came by it lawfully. Sub-section (4) says:—

"A person found committing an offence under this section may be arrested without warrant, and brought, together with the military property which is the subject of the offence, before a justice of the District Court, and any person to whom any such property is offered to be sold, pawned or delivered, who has reasonable cause to suppose that the same is offered in contravention of this section, may arrest without warrant the person offering such military property and deliver him and such military property into the custody of a member of the Garda Síochána to be dealt with according to law."

In other words, if a person offers a groundsheet which appears to be military property—the sort of thing you see a "bellman" wearing, and which obviously has belonged to some army somewhere at some time—the person to whom it is offered may arrest without warrant the person offering it to him and lug him down to the Garda station. I think there is adequate law in the ordinary criminal code to deal with this. There is plenty of law in the section to make him guilty of an offence. If he:—

"(i) buys, exchanges, takes in pawn, obtains or receives from any person, on any pretence whatsoever, any military property, or

(ii) solicits or entices any person to sell, exchange, pawn or give away any military property, or

(iii) assists or acts for any person in selling, exchanging, pawning or making away with any military property,

such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £20 together with treble the value of any military property of which he has become possessed by means of the offence or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and imprisonment."

One would think there was enough law, enough punishment, enough provision regarding any such offence. But no, we have to proceed in the way we are proceeding all the time, throwing overboard all the canons of justice and reversing them as far as a military article or something alleged to be a military article is concerned. It may even be a military utensil—such as boy scouts go around with. We oblige the person to prove that he obtained the property lawfully.

I have no objection to a discussion in this House on the principles governing justice, whether we are to have the French system or any other system rather than what is known as the English system under which we operate, where the accused is considered innocent until he is proved to be guillty. I have no objection to that being considered, but I have the greatest objection to nibbling in and biting into the principles of law as we have it, as is done in this section and in this Bill. This is one of the examples.

The Minister will say: "We have to protect public property." Public property, private property or any other property is not as sacrosanct as the principles of justice, because on the principles of justice are based the freedom of the individual. If we deprive the individual of his freedom through interfering with the principles of justice, we nullify our constitutional provisions. For that reason, I object to that type of section in this or any other Bill.

Mr. Traynor

Every time I hear Deputy Cowan dissertating on the legal iniquities of this Bill, I ask myself what sort of legal advisers the Government have, because if the Bill is as bad as Deputy Cowan appears to believe it is, it must be unconstitutional. If it is unconstitutional, somebody should try to prove that. The funny thing about it is that this particular section and even the sub-sections to which the Deputy has taken exception are old sections that have been there for years. I am not saying that that is a reason why they should never be altered. They should be altered if there is a good reason for altering them.

We are all taught to believe that the most iniquitous person is the person who is described as a receiver. Is not that so?

Captain Cowan

Yes, if he is proved to be a receiver.

Mr. Traynor

He is the greatest danger, the source of all crime.

Captain Cowan

Yes, if he is proved to be a receiver.

Mr. Traynor

Of course, if he is not proved to be a receiver, he is set free. This section merely attempts to deal with the receiver. It does not deal with the soldier. The soldier can be dealt with by the normal military law. If the soldier is got at by some nefarious individual outside who can induce that soldier to take out State property, whether it is the sheets that Deputy Cowan referred to or equipment or foodstuffs, that is the man who should be got after immediately. No punishment would be too severe for that type of person, because he is the main source of crime. For that reason, I think the section should remain. The section has been there through all the years. I do not know if it has had to operate to any extent. During the emergency, which was an abnormal time, there was a number of cases which had to be dealt with and, if my memory serves me correctly, at that particular period receivers were pretty severely dealt with. I thought at the time that it stopped a particular type of crime that was developing and was assuming a very serious proportion. When the source was discovered, that stopped; the State saved a lot of money, and, I am sure, many decent men's characters were saved.

I see no reason for deleting these sections as suggested by the amendment. There are ample safeguards against anything in the nature of an injustice being done. I am not certain about this, but I understand that in the ordinary civil law the onus is on the receiver to show that he came into the property lawfully. I think that is correct.

Captain Cowan

Correct?

Mr. Traynor

If he can prove to the court that he has lawfully come into the property that he is charged with receiving, the matter ends there. If the onus is on him and he fails to prove that he came into the property lawfully, he will be dealt with in the manner indicated in this particular section. I do not think anyone should shed any tears for that type of individual. If he deals in that sort of crime he should take whatever is coming to him.

Amendment put and declared lost.

Amendment No. 197 not moved.

An Leas-Cheann Comhairle

Amendments Nos. 198 and 199 may be debated together.

Captain Cowan

I move amendment No. 198:—

In page 116, Section 263 (1), line 15, to delete "upon that uniform" and substitute "on the Defence Forces".

This is a very simple thing. Sub-section (1) of Section 263 says:—

"If any person wears any uniform of the Defence Forces or any dress, having the appearance of, or bearing any of the regimental or other distinctive marks of, any such uniform, in such a manner or in such circumstances as to be likely to bring contempt upon that uniform, such person shall be guilty of an offence under this sub-section."

I do not like that expression "contempt upon the uniform" because I do not think it means anything. I have substituted the words "on the Defence Forces". I think a person can be guilty of bringing contempt on the Defence Forces. I do not think a person could reasonably be convicted of being guilty of bringing contempt upon a uniform. It is a small drafting matter. I think my words are better than the Minister's.

Mr. Traynor

In this case I have been asked specially by the Army authorities to ensure that this section will stand in the Bill.

Captain Cowan

I have no objection to the section.

Mr. Traynor

I have been asked to ensure that it would not be altered. The amendments would alter it. The Army authorities inform me that one of the first things they endeavour to inculcate in the minds of recruits to the Army or to the officer corps is pride in their uniform. The men are taught that anything that would be likely to bring contempt on that uniform should be regarded as a very serious matter. The Army authorities pointed out to me that we are endeavouring to do the same thing in regard to the flag—we are endeavouring to create pride in the national flag. The effort is to create pride in the uniform that will ensure that any man wearing the uniform will not do anything to bring the uniform into contempt. It is because the Army authorities feel so strongly about that, that they mentioned the matter to me personally and that I just mention the matter here.

Captain Cowan

I have no very strong views: I just think my wording is better. As a matter of fact, I think that, on reflection, the Army authorities would realise that anything that brings contempt on the Defence Forces should be punished. The uniforms may change from week to week or from month to month, but the Defence Forces will continue. Anyone who brings contempt on the Defence Forces certainly ought to be punished, but I cannot see how you could bring contempt on a uniform. If the Minister thinks his wording is the better of the two, I will not press my amendment.

Amendment, by leave, withdrawn.

Amendment No. 199 not moved.

Captain Cowan

I move amendment No. 200:—

In page 116, Section 264 (2), to insert "serviceable" after "any", in lines 40 and 43.

This section deals with dyeing and conversing of uniforms, and so forth.

"If any person, except under and in accordance with a permit issued by or on behalf of the Minister (a) dyes, or receives for the purpose of dyeing, any service textile article or any article which he has reasonable grounds for believing is a service textile article or a converted textile article, or (b) converts into another article or receives for the purpose of conversion into another article any service textile article, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £10."

Sub-section (2) of this section reads as follows:—

"In this section—

the expression `service textile article' means any article of a textile nature issued to or for the use of members of the Defence Forces; the expression `converted service textile article' means any service textile article which has been converted into another article."

I agree that if serviceable articles which are on issue to the Defence Forces are mutilated or dyed it should be an offence and, in fact, this section provides that it is an offence. However, we must consider circumstances in which the articles have ceased to be serviceable—circumstances in which they are sold, circumstances in which an officer retires and brings with him parts of his uniform, circumstances in which an old greatcoat is cut down to a smaller greatcoat. One often sees leather buttons on uniform coats that have been dyed. If articles have only a very short life and cease, in fact, to be the property of the Minister for Defence, surely there should be no charge in regard to them.

This section is so wide that once an article has ever been a military article it is still the subject of an offence under this section, because a "service textile article" means any article of a textile nature issued to or for the use of members of the Defence Forces. Therefore, once it was issued to or for the use of members of the Defence Forces it is a "service textile article" and remains such in sxcula sxculorum, or while it exists.

We ought to be reasonable. We know that the country is full of service textile articles that at one time were issued for the use of members of the Defence Forces. Every coalman you see around Dublin has an old Army greatcoat on him. You see such coats worn at fairs and by people all over the country. If we limit it to articles in use or in service, I think we are not doing anything wrong but if we widen it, as it appears in the section, anybody can be arrested and charged with having in his possession, dyeing or altering or converting an article that was issued at some time for the use of the Defence Forces.

Mr. Traynor

Again, this is getting down to the basis of the thief. We all know that there are people who would like to get hold of articles other than uniforms or things of that kind. There are other textile articles which are Army property — articles such as blankets, sheets and covers of one kind or another—and which could very easily be taken out and dyed so that it would be almost impossible to identify some of them. We must provide some form of protection, even in the case of uniforms.

When I got this first, and read it, my reaction was that it was reasonable and I asked myself why should we not insert "serviceable". However, when I took up the matter with my officials, it was pointed out to me that the onus would be on us to prove that an article was serviceable. I could imagine a long debate in court on the question of whether or not an article was serviceable.

It is true to say, and I think it is a pity that it is true, that very large numbers of people are working every day in this city and in the fields throughout the country wearing uniforms which are State property and which they got, I feel, rather too easily. However, that does not come within this matter. They got these uniforms and they gave a certain amount of service. They dropped out and now these articles are more or less their property; they are not legally their property, but we do not make any very great effort to recover them.

Here, we are endeavouring to deal with the type of offence where someone would take out a number of these articles in bulk, even old uniforms, and pass them over to somebody else who would have them dyed and disguised in such a way that it would be impossible to identify them or to state whether they were State property at all. It is to try and stop that sort of thing that we have deliberately, I have been informed, framed the words as they appear in this section—

"the expression `service textile article' means any article of a textile nature issued to or for the use of members of the Defence Forces,"

—not any "serviceable" article. I think it is a good safeguard, and I think Deputy Cowan would be prepared to agree that you must have a safeguard of that kind, as otherwise you will be placed in the difficult position, if you have to go to court, of endeavouring to prove that the article was serviceable. In general, I think that we are on the safe side by leaving it the way it is.

Amendment put and declared lost.

An Leas-Cheann Comhairle

Amendment No. 201 will be taken after amendment No. 205.

Mr. Traynor

I move amendment No. 202:—

In pages 133 and 134, to delete Section 300, lines 34 to 48, on page 133, and lines 1 to 26 on page 124.

The purpose of this amendment is to delete Section 300. I had this section inserted on the Committee Stage because it was not then clear when the Social Welfare Bill would be enacted. It has since become law and Section 300 is, therefore, unnecessary.

Captain Cowan

That is the whole section?

Mr. Traynor

Yes.

Amendment agreed to.

Mr. Traynor

I move:—

In page 134, Section 301 (b), line 34, to insert "continuously" after "employed".

The purpose of this amendment, as I already explained in the case of a previous amendment, is to make it clear that the section applies to a Reserve officer only when he is on full-time service.

Captain Cowan

I do not like an amendment of the Electoral Act to go through without knowing what exactly it means. May I take this as meaning that from the point of view of postal voting a member of the Defence Forces on permanent service will be entitled to vote by post, and, similarly, a reservist, on permanent service? Because it is an amendment of the Electoral Act its clear provisions should be stated.

Mr. Traynor

It is to make it clear that the section applies to a Reserve officer only when he is in full-time service.

Amendment agreed to.

Mr. Traynor

I move:—

In pages 135 and 136, to delete Section 307, lines 49 to 62, on page 135 and lines 1 to 50 on page 136.

The purpose of this is to delete Section 307, which is now also unnecessary, having regard to the Social Welfare Act.

Amendment agreed to.

Mr. Traynor

I move:—

In page 137, Section 309 (1) (b), lines 14 to 17, to delete "(not being the Unemployment Insurance Act, 1941 (No. 3 of 1941), the Unemployment Insurance Act, 1945 (No. 23 of 1945) or the Unemployment Insurance Act, 1946 (No. 37 of 1946) )".

The purpose of this amendment is to make some textual alterations in Section 309 consequent on the passing of the Social Welfare Act.

Amendment agreed to.

Mr. Traynor

I move:—

In page 140, Section 318 (1) (b), line 19, to substitute "Part III" for "Part II."

This merely corrects a typographical error.

Amendment agreed to.

Mr. Traynor

I move:—

In page 142, to insert at the end of and as part of the First Schedule the following:—

No. 2 of 1952.

Defence Forces (Temporary Pro- visions) Act, 1952.

The whole Act.

Amendment agreed to.

Mr. Traynor

I move:—

In page 142, to insert at the end of and as part of the First Schedule the following:—

No. 1 of 1953.

Defence Forces (Temporary Pro- visions) Act, 1953.

The whole Act.

The amendment adds the Defence Forces (Temporary Provisions) Act, 1953, to the list of enactments to be repealed when this Bill becomes law and comes into operation.

Amendment agreed to.

Mr. Traynor

I move:—

In page 142, to insert at the end of and as part of the First Schedule the following:—

No. 5 of 1954.

Defence Forces (Temporary Pro- visions) Act, 1954.

The whole Act.

This amendment adds the Defence Forces (Temporary Provisions) Act, 1954, to the list of enactments repealed by this Bill when it becomes law and comes into operation.

Amendment agreed to.

Captain Cowan

I move:—

In page 143, at Reference No. 6 of the Second Schedule for "Commandant", to substitute "Major".

We are on the last amendment and this is an old topic. The amendment is to substitute the rank of major for the rank of commandant. I know that in making a recommendation such as this I would be very strongly opposed by the Minister and I am not too sure whether Deputy General MacEoin would be in opposition or not. Since the Defence Forces were established we have had alterations from time to time in ranks. In the armies of other countries there are well-defined and well-known ranks of officers. As far as our N.C.O.s and men are concerned their ranks and the ranks of the Navy follow the generally-accepted lines in regard to title and if one of our soldiers, a corporal, a sergeant, a company-sergeant or a sergeant-major meets a person of the same status in another army, he finds they have the same rank and there is not very much trouble about it. Similarly in regard to our officer ranks, we have general, lieutenant-general, major-general; we have colonel, lieutenant-colonel, captain, lieutenant, second-lieutenant and these follow the generally-accepted ranks hierarchy in all other armies. We had in the Army here the rank of major and it was a rank senior to that of commandant. It was found by experience that to hold the rank of major was considered to be in international gatherings of military officers just a step above captain. And to that extent our officers who travelled abroad and met officers of other armies, who have been to schools and instruction in military colleges—in all of which, as we all know, they represented this country and our Army with the greatest distinction—but found that the rank of major as superior to commandant left them in an embarrassing position because they were considered to be a rank junior to what, in fact, they were. Very wisely—I think it was at the instance of the present Minister—the rank of major was abolished and the rank of lieutenant-colonel substituted. That aspect of it has been put right.

In regard to the rank of commandant—commandant in actual fact is not a rank. It is not what is generally known as a recognised rank. It is a title or appointment and you may have, as you would have, say, a general a commandant of a military college, or a colonel commandant of a military college or a captain a camp commandant, or a lieutenant-colonel as a camp commandant. The word is more related to position or appointment than it is to rank. The position of commandant may be occupied by a person of any rank depending on what the particular position is and the rank that is required or prescribed for it. In international gatherings of officers this rank of commandant that we have is not understood. It is not understood that it is the equivalent of the rank of major in armies with whose officers our officers may be in contact for one reason or another, and to that extent it seems to me to be desirable that we should avail of this opportunity of getting our ranks into those internationally recognised. We have over the last 30 years eliminated all other distinctions there were but we have left this old position there. It has been left there because of its association with what one may term the Army that achieved our freedom. The rank of commandant, as we know it, means a good deal particularly to officers of the I.R.A. in the past, and there has been a desire, I think, to retain that particular rank of commandant for that purpose. But, where we have an internationally recognised hierarchy of ranks, I think it is just as well that we should follow the generally accepted trend, and that, in regard to the rank of commandant, we should abolish it as a rank and substitute for it the rank of major, because that is the internationally recognised rank that is equivalent to our rank of commandant. If this rank of commandant was peculiar to us because of our language, because it had a significance as a well-recognised and accepted Irish name, and if we use that Irish title or name as equivalent to the rank of major in another country, it would possibly be all right, but commandant is an English word which represents an appointment rather than a rank. It does not seem to fit in. I am availing of the opportunity of this Act going through to recommend very strongly to the Dáil that we remove commandant as a rank and substitute for it the rank of major.

General MacEoin

It is true to say that commandant represents more an appointment than a rank. At the same time, in ordinary military terms, the word has a special significance in the history of this country which I think we should not lightly cast away. From time to time various suggestions have been made that this particular rank in the Irish Army should be changed. I have never heard anyone suggest that it be given up and cut away from the other ranks until I heard Deputy Cowan do so to-day. It is the first time, I think, that I have heard an old-timer argue that, because of the international wording of the various ranks, we should keep in line with them.

I think that this particular rank marks our own distinctiveness. The word itself has the meaning of a special rank, and, in various other Acts, it has been referred to from time to time. It is the rank given for the exercise of certain statutory functions in the case of certain eventualities, such as war or civil commotion. Therefore, because of its former history, I think it would be a pity to remove the rank from the Irish Army. Very few people realise, of course, that from the inception of the Army the highest rank was that of commandant. As regards appointments, it was, for example, Commandant Pearse. The other leaders in 1916 also held the rank of commandant. It was at a later stage that the title of general was added, but we had the rank of commandant of a brigade and commandant of a battalion. Because of all that, it has a special meaning so far as our national struggle is concerned. I think it would be a pity to remove the rank of commandant from our vocabulary. So long as it remains, it will be there as a memorial to the time that has passed. For these reasons I think Deputy Cowan should not ask the Minister or the Dáil to alter that particular rank. I say, leave it there as an honoured word in the ranks of our Army, and let us hope that all who will occupy or hold that rank will always live up to the responsibilities which it carries.

Mr. Traynor

The outline which Deputy Cowan has given of the history of the ranks is correct. These ranks internationally, are as he has stated Before we changed the rank of major to that of lieutenant-colonel, there was a certain amount of upset when officers of this nation met officers of, say, the British, the American and, in some cases, the French nations because our major was the equivalent of that of lieutenant-colonel. But major, generally, in the international sense of the word, was, as Deputy Cowan has stated, a rank next to captain. The result was, of course, that lieutenant-colonels who were talking to our majors thought they were talking to officers carrying an inferior rank to themselves. That was a source of some embarrassment to our officers. It was for that reason that I altered that rank some time towards the end of the emergency.

When it came to the question of changing the rank of commandant I must confess that, like Deputy MacEoin, I based my decision on sentiment, and sentiment alone. I felt that it would clarify the position more between visiting officers if a major knew that he was talking to a major, and if a lieutenant-colonel knew he was talking to a lieutenant-colonel. I think we have now created a situation in which the word commandant is accepted internationally as meaning what it is, the equivalent of major. I know that the difficulties which existed heretofore do not exist now and from that point of view I think that a good job of work has been completed. I am not prepared to accept the amendment put down by Deputy Cowan for the same reasons as those which have been given by Deputy MacEoin. I think the historical facts connected with the rank, the numbers of soldiers of the Republican Army who died in that rank, giving service in it right from 1916 up to the Truce, would almost preclude us from ever removing the title of commandant from our Army. It is possible that when we pass on, sentiment will not be quite so strong and the probability is that in order to equalise ranks internationally the title of commandant may be removed. It is like a lot of things which still persist here mainly because of sentiment; so long as our generation survives I doubt if that particular rank will in fact be changed. It was not difficult to change the rank of major because we never had such a rank; neither had we the rank of lieutenant-colonel; sentiment did not therefore enter into those changes at all. Speaking for myself, I would say that the only reason why I do not clarify the situation still more is solely from the point of view of sentiment.

Captain Cowan

I accept that the Minister's approach to this matter is entirely based on sentiment and on the historical significance of the rank. There is a good deal of historical significance in the weapons that were used in the past, the pike and so on; those weapons played their part at the right time but, as the military profession improved and established itself, new weapons were introduced.

The world is changing rapidly. It is becoming smaller every day. Officers of our Army fly to Sweden, France, Italy, Germany, America and elsewhere in the performance of their ordinary duties. There is a well-recognised hierarchy of ranks in other armies and it is a pity that these armies should require a dictionary for reference purposes in order to find out exactly to what rank this Irish commandant is equivalent. Officers from all over the world assemble in these staff and command colleges, or schools, and invariably the rank of commandant has to be explained. This Irish commandant is equivalent to a major; he is above a captain, but he is not as high as a lieutenant-colonel.

Sentiment is all right in its own place, but the opportunity has now arrived of bringing our ranks into relationship with those internationally recognised. I appreciate the Minister's and Deputy MacEoin's feelings and the feelings of all the old-timers, if I may so describe them, in relation to the title and rank of commandant but I do not think it would be right to let this Bill pass without having the matter mentioned and discussed so that our Army will at least know that the matter was discussed and that it was deliberately decided that the rank of commandant should be maintained for the reasons stated by both the Minister and Deputy MacEoin.

Amendment put and declared negatived.

Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.

Captain Cowan

I would ask that the Final Stage be not taken now. We have made a considerable number of amendments in the Bill and I would like to see the Bill, as amended, before I would be in a position to speak to the House in relation to it. I think on the last stage I am limited to speaking on the Bill as it is.

Mr. Traynor

I would appeal to the Deputy to take the Final Stage now. I do not think that seeing the Bill in its final form will make any difference to the Deputy's concluding speech. I am sure he has his views.

Captain Cowan

I feel I will condense my speech if I am given time. If I have no time I may ramble.

Mr. Traynor

May I put this point? We have this opportunity of utilising another couple of hours usefully, and we ought to avail of the opportunity, especially in view of the fact that between now and next week we will be getting the Bill printed and will be approaching the position when we can get it introduced into the Seanad. When it reaches that stage it will be on its "run up the straight" so to speak. When we get it to that stage it will not have died; if we get it out of this House now it will live. If by any chance we do not get it out of this House and this House ceases to be, the Bill dies with it. It would be a pity if that happened, and from that point of view I appeal to Deputy Cowan, Deputy MacEoin and any other Deputies who might feel they should delay it a little longer to deal with the matter now.

Captain Cowan

As far as I am concerned, if I get an opportunity of having a cup of tea, I am prepared to go on to-night; but I would prefer to see the Bill in its final print.

General MacEoin

There has been considerable amendment by both Deputy Cowan and by the Minister. Now this is a very important Bill. I have purposely avoided taking much part in the Report Stage but, having listened to the arguments—arguments about which I am not too happy—I would like to have an opportunity of going through the Bill before we take the Final Stage. I admit that it would be a very grave situation if the Bill lapsed through any fault of ours after so much parliamentary time has been devoted to it. But there is also the other House to consider it and if they amend it, are we not still in the same position, unless the Minister takes the view that the Seanad is just going to rubber stamp everything done here? I do not think they will, because there are points in it that are bound to require consideration and very probably there will be amendments carried even by members of the Minister's own Party. Therefore, I think we would not be losing anything if the Minister left the Final Stage over until Wednesday. I think he would get the Bill very speedily then. The Seanad could meet on Thursday. I think that would be more satisfactory. I do not think there is any amendment we can make in it now. If the Minister, however, is keen on getting the Bill through this evening, I will not prevent him from getting it.

Mr. Traynor

Looking at it from the logical point of view, seeing the Bill in its final form will not mean anything to the Deputy because we cannot do anything with it on that stage. It may be very nice to see the Bill, which has taken such a very long time to get through the Dáil, in its final form. I do not want to force my point of view on the House. If the House feels that it should be held over until next week, that is all right; I will not press my point.

General MacEoin

I will not force that either.

Mr. Traynor

I am only thinking in terms of time. We have a few hours still left and we could even adjourn for an hour if necessary.

An Ceann Comhairle

Adjourn till 7 o'clock and then resume?

Captain Cowan

Say 7.30. I can tell the Minister that I had thought my concluding speech would have run into something like two parliamentary days, but if I had time to look into it I could condense that very considerably. That is what I have in mind.

Mr. Traynor

If you get two hours, will not that be sufficient?

An Ceann Comhairle

Will we adjourn until 7.30?

General MacEoin

Perhaps the Deputy could condense his speech to half an hour.

Mr. Traynor

So far as we are concerned, the Bill is finished; we can do nothing further to it.

An Ceann Comhairle

That is right.

General MacEoin

I think you could put the question: "That the Bill do now pass."

Captain Cowan

I would be in a better frame of mind if I had a cup of tea. It would rather annoy me if I had to start on a two-day speech at this hour.

An Ceann Comhairle

I take it the Dáil will adjourn until 7.30 and then take the Final Stage of the Bill?

Agreed.

Sitting suspended at 6.25 and resumed at 7.30 p.m.

An Ceann Comhairle

Defence Bill, 1951. Final Stage of the Bill.

Mr. Sweetman

I understood that it had been agreed between the Parliamentary Secretary to the Taoiseach's office and ourselves that the Fifth Stage would not be taken until next week. I do not know if the Minister was aware that representations had been made in respect of the matter.

Mr. Traynor

I was not so aware.

Mr. Sweetman

I think that if the Minister checks with the Office of the Parliamentary Secretary to the Taoiseach he will find that that was stated early on.

Mr. Traynor

The Deputy does not want it taken, then?

Mr. Sweetman

We had indicated certain reasons why we thought it desirable to leave over the Fifth Stage of the Bill till next week. Is there any special reason why it should be taken to-night?

Mr. Traynor

No, I expressed the reasons why I was asking for the Bill. I merely made an appeal that we would take the Final Stage now in view of the fact that we had this time available to us and if we did not take it the House would adjourn and public time would thus be lost, that as nothing in the nature of an amendment could be taken at this particular stage the viewing of the Bill in its final form would mean very little to the Deputies concerned, and that if the Bill was taken this evening I felt that it would not take very long, that the concluding speeches would not be of any very great length and we might then possibly be in a position to have the Bill sent to the Seanad next week.

Mr. Sweetman

My only difficulty is that following the discussion I had with Deputy Ó Briain's office I informed my people that the Final Stage would not be taken to-night. I gather that the Dáil will have to meet next week anyway, and in fact, on the basis on what there is there would seem to be considerable time next week to take the Fifth Stage. If the Tánaiste is quite satisfied that that is a fact——

An Tánaiste

I would not like to leave the House under the impression that any agreement has not been observed.

Mr. Sweetman

I am quite satisfied with that.

An Tánaiste

If the Deputy is under the impression that there was an agreement——

Mr. Sweetman

I am not suggesting that there was any bad faith in it at all, for a second. I would be more specific if I thought that.

An Tánaiste

If there is a substantial objection to taking the Final Stage——

Mr. Sweetman

My only difficulty is that I informed our people that that would be the position, that the Final Stage would not be taken to-night.

General MacEoin

If you will recollect, I asked that it would be left over until next week, and I did put forward reasons why I thought it should be The Minister made an appeal that he would prefer to get it to-night, and, being in an accommodating mood—I suppose that would be the best word I could use—I reluctantly agreed, but I was not aware that our people had been told——

Mr. Traynor

I was not aware either.

General MacEoin

——that the Whips had agreed to postpone it to next week, and that being so I think that my arguments in favour of postponing until next week still stand.

Mr. Traynor

If there is any objection then I cannot do anything about it.

Captain Cowan

It is better, I suppose, that there should be an agreement. I felt that it should be adjourned but in view of the Minister's appeal I was prepared, once we had a short break, to finish it. I think I would have been able to finish it to-night if we had got going.

Mr. Sweetman

I think it is better. Somebody might rely on what I told them.

An Ceann Comhairle

The Minister ought to move the Fifth Stage now to keep the House right as to the order and then adjourn it.

Mr. Traynor

I move that the Bill do now pass.

Debate adjourned.