There may be some reason in what Deputy O'Malley says in regard to the arbitrary character of some aspects of the Supplementary Estimate but the Deputy might have gone further, as I intend doing, to point out the arbitrary character of the whole malicious injury code. There is no way of doing the job which the Minister is doing here other than by doing something which in its nature is inherently arbitrary.
Deputy O'Malley mentioned the difficulty in which a chief superintendent would find himself in being asked to testify in a particular way. The Deputy has a reasonable point but of course chief superintendents are used to being lobbied about all kinds of matters and if they have not enough character to stand up to that lobbying they ought not to be in their jobs. In the first instance they would not have been promoted to their positions if they had been shown at earlier points in their careers to be men of straw. That does not devalue the points the Deputy made and which I concede to some extent.
A decision made by a chief superintendent in the absence of any evidence in regard to whether the trouble originated in connection with Northern Ireland will be subject to judicial review like any other administrative decision. If the ratepayers are agreed on the one side and the Attorney General is agreed on the other, the law has got to the point that his decision can be questioned judicially. I sympathise with the point of view that such a decision should have been judicially made from the very beginning. The House will understand that the courts, already submerged in a backlog of work, would be still further submerged if they were called on to decide whether a particular incident of malicious injury, for example the Silvermines explosion, was connected with the Northern Ireland troubles.
The Northern Ireland troubles seem to be a very good illustration of what an arbitrary system this is. Deputy O'Malley underlined this, maybe unintentionally, in bringing out the difficulty of making a decision in connection with the Silvermines explosion. No matter where the line is drawn, an injustice is being done to some people by overburdening them with something for which they have no liability, and excessive favour being given to others by releasing them from that liability. There is no reason in logic why malicious injury attributed to the North of Ireland troubles, or to the violent activity which has spread from it, should not be put into a special category and the local ratepayers should be relieved of such responsibility, while they are stuck with responsibility for acts of no political dimension but from which they are equally unable to protect themselves and for which they equally carry no responsibility whatever. That is the inherent illogicality of the malicious injuries code which has been pointed out here very clearly by the Minister and his opposite number in mentioning the North of Ireland.
We all see that the situation in Northern Ireland, quantitatively speaking, has produced an inordinate amount of suffering and damage. There is no reason in logic why it should be made a special case and why, in regard to the damage to the Silvermines, if it were committed by a child firebug on holidays from County Louth, the people down there ought not to have been exempted from having to carry the burden in that case also. The entire system is irrational and cannot be defended. That system is a survival of an ancient criminal code which imputed liability to residents of an area for outrages committed in their district. It was part of the criminal law going back to the Middle Ages. It was maintained in this country in the form in which it exists and nowhere else in Europe. It still rests on the idea that people in the locality are in a position to prevent damage from being committed maliciously. It penalises them for something for which liability is imputed to them.
I can imagine in a case of agrarian unrest or in a row about land division or acquisition, where ricks are burned or barns are destroyed it may be fair to say that all the families knew what was going on and could have stopped it if they had given information to the Garda, but they did not. There may be many cases like that of which I know nothing. The average instance of malicious injury is one in which it is inconceivable that local residents, let alone the local ratepayers, could have done the slightest thing to stop it.
Let me give an extreme example of the absurdity of this system. I remember this from my own short practice at the Bar. I cannot recall if I was appearing for the county council or for CIE but I do remember what it was all about, vandalism on an excursion train travelling from Dublin to Cork — may be it was Cork to Dublin — carrying hurling enthusiasts. The train was vandalised and the evidence seemed to show that all this happened while the train was whizzing through County Kildare. Believe it or not, a claim was brought by CIE against the Kildare County Council for the recoupment of that loss. That happened 14 or 15 years ago and as I said I cannot remember on what side I was or whether we won or lost. It was a sustainable claim at law in the conditions of those times and those legal conditions have not changed. That train did not stop anywhere in County Kildare. But since it could be alleged that the train was vandalised while within the boundaries of the county, in theory the claim lay against the ratepayers of that county who, on no possible construction of the situation, could have done anything to prevent it.
My view is that the malicious injury code in the form in which it survived here is unconstitutional. It purports to inflict a penalty on people who, not alone have not been convicted of an offence but have not been tried and could not be tried on any offence known to the law. Nothing could be a clearer infraction of Article 38. It seems to me to be an infraction of Article 40 also because it contains a very serious inequality. The Constitution guarantees all citizens equality in the eyes of the law. This system discriminates not only between citizens inasmuch as some are ratepayers and others are not, but it discriminates between the ratepayers in one county and those in another, none of whom was responsible for the outrage.
Suppose an outrage is committed somewhere in Carlow near the Kildare border. In such a condition it would be possible to have been done by some vandal from Kildare crossing into County Carlow. It is a total inequality in the eyes of the law and, I believe, unconstitutional, that when that claim is processed and paid by the Carlow County Council, that Carlow ratepayers should have to pay for it when it is equally possible that the wrongdoer came from County Kildare. Even if it were possible to show where he came from, I still do not think it would be right to charge the ratepayers, as distinct from all citizens in County Kildare, with the damage. The system is a creaking, unjust and, in the strictest sense, unconstitutional one. For what my opinion is worth, I make a free present of this advice to any solicitor who finds himself representing a county council, such as the North Riding of Tipperary, charged with a big claim in connection with the Silvermines explosion. Let him defend the claim on the basis that the law on which it is being brought is not consistent with the Constitution. It would be wrong to make a case of that type which would inevitably end up in the Supreme Court in connection with a very small claim. In connection with a substantial claim it would be well worth making that case. It would be, perhaps, contemptuous for me to predict Supreme Court reaction. Our antiquated statutes go back to the Tithe War. These statutes could be held in their application to modern conditions to be unconstitutional.
Leaving aside the question of the constitutionality of the system, in 1960 an inter-departmental committee was set up consisting of officials of the Departments of Lands, Justice, Finance and Local Government to consider the question of malicious injury payments being recouped from local authorities. That committee reported in 1963 against changing the system. It is fair to say that the committee's attention was not directed to the strictly legal and constitutional aspects of the system and, therefore, might not have been equipped to consider them. It reported against changing the system because it felt that the system more or less worked. In connection with the so-called local levy where a charge is levied not on a county at large but on a particular town land or barony, it said that a local levy brought home to the people of an area where, for instance, a land agitation was in progress, that they had some moral responsibility in the matter. We all have moral responsibility for a whole range of things. We have our responsibilities as citizens. I cannot see that a person who is completely innocent and even ignorant of the fact that a malicious act has been committed should have it brought home to him, by this cruel engine of medieval law, that he has a moral responsibility in the matter. I freely admit that he has a responsibility to dissuade his neighbours from doing criminal acts if he gets the chance. I am completely against the idea that the law should bring home to him in this unjust way the moral responsibility for an act for which he not only has no responsibility but of which he was even ignorant.
I suspect, with the greatest respect to that committee, that considerations of conservatism and convenience more than anything else weighed with them in recommending that no change should be made. In part of the report they produced an argument which was intended to rebut the argument that to make malicious injury claims as such a charge on the central Exchequer would reduce costs. The committee tried to dispose of this argument by saying that to transfer the responsibility to the State would necessitate the establishment of more specialised staff, both technical and legal. This, they felt, would greatly increase the cost of malicious injuries. On the other hand, inquiries made indicated that removing the responsibility from local authorities would not result in any tangible saving to them. That means that if there were a system of centralised malicious injury claims a special section of the Attorney General's Department would have to be set up to process them.
Officials who are now engaged on other work would have to be seconded to do this job. Down the country the local county solicitors' offices would be still doing their ordinary legal work. They would not have any appreciable lightening of their work by the removal from their desks of malicious injury claims. I suggest that that does not hold any water as an argument. There is no need to change the litigation machinery whereby malicious injury claims can be enforced at the moment. They can still be brought against the county or the county borough. I have no objection at all to that. If the system works well as a piece of machinery there is no reason why the claims should not be processed by the local authority. The local authorities should be allowed by law to send the bill to Dublin.
The Deputy who has spoken already — and I can see that others wish to speak — will agree with me in what I say about this. I do not want to reiterate the arguments but where there is no evidence to show where a wrongdoer came from, or even where there is evidence, it is totally unjust that the ratepaying section of his neighbours should be stuck with the consequences of his malice. It seems to me that the only sensible way to deal with this at all is to agree that we have a social responsibility as a nation to compensate the victims of malice. That compensation should be a national charge. I am quite happy if it works well, and if to demolish and replace the machinery would be expensive, that the claims should be brought against county councils but that the bills for the claims once conceded by the court should be sent to Dublin. That would obviate the delays to which Deputy O'Malley referred. There would no longer be a question of waiting until the rate is struck. As soon as the matter is decided by the court the claim should be sent to Dublin and the Central Fund should pay it immediately without waiting until the rate for that particular county or county borough was struck in the following year.
That would get rid of the difficulty which Deputy O'Malley mentioned under the heading of depreciation of money. It is true that an award made in one year, if not paid for two or three years, will not any longer make good the real loss to the injured party. Conditions may vary but the money may not possibly be of as much use two or three years later. If these charges were centralised and if the making of a decree by the court led to quicker payment that difficulty would disappear.
Finally, I understand that this whole question is being considered in the Department of Justice. I would like to add my voice to those who are urging the Minister to make the entire system of malicious injury compensation a national rather than a local charge. I hope the Minister will bring his weight to bear in the same direction.
