If Deputy Barry is right even that instance will lend some weight to what I am saying. Many of the acts of Mr. McLaughlin would not cause anybody any grievance and would not have given anybody cause for complaint. But what about the acts of Mr. McLaughlin which may have caused grievance? They are in a quite different category because at the time they were done, although they were innocently done as far as Mr. McLaughlin was concerned, they were done in the purported exercise of an authority which it was not his to exercise, and which still resided in Commissioner Garvey.
I am sure if Deputy Harte is right in detecting two hands in the Minister's speech, one a fine Italian one and the other a Limerick one. The earlier part of the Minister's speech contains the following:
There is no injustice to anybody in the restrospective validation of those authorisations since they are authorisations that would have been granted, in accordance with well-established practice, irrespective of who was commissioner, and the invalidity of Mr. McLaughlin's original appointment has no material relevance to the decisions taken by the relevant superintendents.
Sherlock Holmes used a rather pompous little expression when he was hot on the trail of something in the gaslight and fogs of Victorian London. He used to say: "You may have heard of any little reputation I may possess. I will stake it all on the fact that your story is an absolute fabrication". Every lawyer feels that he knows a little about his subject. I do not mind staking anything I feel I know about my subject on the assertion that that sentence is completely wrong. It is correct only in the sense in which the word injustice might be used in a church or on a political platform but it is not correct in a legal setting.
The Minister must not forget that people are not entitled to justice. If they can get justice, well and good. What they are entitled to is the benefit of the law and the last letter of the law. They are entitled to the last morsel that can be extracted from the letter of the law. That is what is meant by the rule of the law. While I know what the Minister means in a general sort of way when he says that many of the authorisations he is talking about here—I realise also that it is only a restricted field of the commissioner's functions which is in play in this part of the speech—and a lot of what happened under Mr. McLaughlin would have happened anyway no matter who was commissioner and, therefore, somebody cannot complain, that is not true in the legal sense.
If I have committed a break-in, stolen a car or committed some offence and I am tried for it, convicted and sentenced to some penalty and I find afterwards that the judge who presided over my trial, conviction and sentence was dressed up as a judge, that he kidnapped the real judge and took his place on the bench that day and that the whole thing was a farce from start to finish, still in a sense no injustice was done. Even if there had been a proper judge on the bench the same thing would have happened to me.
But that is not the point relevant to a lawyer because a lawyer is entitled to extract the utmost morsel from the law for the benefit of his client. A citizen is entitled to the last morsel for his own benefit. If a citizen finds that he has been tried in front of a judge, whose appointment was invalid, the whole series of steps, the conviction, the sentence, the committal order which flow from that, are equally invalid. It is as though they all hung like a chain from the heavens and if you cut through one link of the chain high up, all the rest fall into the sea.
If the Minister does not believe me he will find that this point was made actually in regard to the appointment of a judge in 1951 by a litigant called Killian, who alleged—it was an academic point—that the judge by whom he had been tried for arson or something like that, had not been properly appointed. The reason he said he had not been properly appointed was that the courts which the Constitution envisaged were intended to be set up immediately after the enactment of the Constitution, and by 1951 they still had not been set up, so that whoever was still purporting to function as a judge was not in fact properly appointed at all.
That might seem a dim argument to a layman or a dim argument to a Minister willing to say that no injustice had been done because this or that would have happened anyway. The Supreme Court took it as a serious legal argument. They made it quite clear, by taking it seriously, that, had he succeeded in establishing—he lost because of his interpretation of the Constitution—that Judge McCarthy before whom he was tried had not been properly appointed, his conviction and his sentence would have been gone.
It is no good saying that no injustice has been done. To say a citizen is not entitled to justice does not explain what his rights are. He is entitled to justice, so far as the law can give it to him. If he is the recipient of a disposition on the side of a governmental authority, a police commissioner or anybody else, unless the State can show an unbroken link of authority between the disposition which requires from him the payment of a £10 fine, to the summit, unless all these steps represent an unbroken series of chains, without any weak link, the citizen is entitled to exploit the weak link in regard to what has been done to him as unlawful. The courts are there to assert that it is unlawful and to assert his right and to extract the uttermost drop from the law in his favour.
The consequence of the situation so far as concerns Mr. McLaughlin and the person who is still Commissioner Garvey, innocent though Mr. McLaughlin is in this regard, is that there may be people who were aggrieved by things done under Mr. McLaughlin. I am saying this as a category quite separate from things which were not a source of contention. Deputy Barry mentioned yellow lines, but let us assume that never happened. Taxi licences are highly contentious and I will deal with them in a moment. If something was done by Mr. McLaughlin at the time when he had no authority, that person has the right to feel aggrieved.
As Deputy Fitzpatrick said, let us look at somebody passed over for promotion. In consequence of the first of several names on the recommended list having been ignored and subsequent names substituted in their place, the people aggrieved by that proceeding might have had, and perhaps still have, a right of action in respect of the illegality of the appointments which were purported to be made.
I know the Bill is intended to put an end to all this. I know the purpose of the Bill is to deprive these people retrospectively of any possible right of action; but that is just the point at which the difficulties begin. Can it do that? I am not so much concerned here with the validity of the appointments of the inspectors or sergeants who were promoted. I am concerned with the grievance which might be felt by those who were not. I am also concerned with the people who applied for taxi driving licences who were refused them or conversely with the rights of existing taxi drivers who objected to new licences being granted.
The Minister probably realises that the atmosphere of the Supreme Court these days is very different from what it was 20 years ago. There is a very adventurous bench there now. They have built up whole new structures of rights which were undreamed of when I was a student or even when I was at the bar. One of these rights is the right to earn a livelihood. These are rights which are not mentioned in the Constitution, but are held now to be latent in the guarantees of Article 40.3. Corollary to the right of earning a livelihood is the right to embark on a career, train for a career and so on. In its application—and sooner or later it will be so applied—to a career which is part of a hierarchial structure, in which there is such a thing as promotion from step to step, I would say that the Supreme Court would not have any difficulty in holding that the right to a career and livelihood carried with it the right to fair chance of promotion.
I make no reflection, good or bad, or pass no comment, good or bad, on the quality, correctness or wisdom of the promotions or refusals to promote. They may have been very wise decisions for all I know. All I am saying is that a man who was passed over for promotion, or a taxi driver who was refused a licence or who might feel aggrieved by the fact that somebody was granted one, realises that the disposition about which he felt aggrieved was one without lawful authority. Therefore, he may have a right of action to ask the courts to set aside those purported disposition, to set aside those purported promotions and get the administrative authority concerned to open up the whole thing all over again.
Although the matter has not been explored I consider that there is a definite possibility that it is not open to these Houses retrospectively to cut off rights of action which people have, as the Minister for Fisheries would say "at this moment in time" by virtue of one very plausible reading of Article 34 or Article 40, vested constitutional rights. It may not be within the power of these Houses plus the President to divest those rights by the passage of a one-section bill.
The Minister knows by now he has put his foot into a nest of hornets. I do not get any degree of satisfaction from watching him suffer but I must warn him that, while this Bill may have the desired effect, I am not by any means sure it will. There are two precedents on the statute book—there may be more and if so I would be grateful, for personal reasons, if anybody would point them out to me—of specific attempts to cut off rights of action which were already vested. One was the Accidental Fires Act, 1943, which purported to render non-actionable damage resulting from a fire on neighbouring premises arising after a certain date. The Bill was drawn up in such a way that actions arising from the big fire—the fire in Athlone—would not be affected but there may have been other actions which were on the point of being launched at that time and which that Act purported to put a quick end to.
The constitutionality of that Act was never litigated. Even if it had been, it is possible that the Government may have got away with it because the spirit of Supreme Court in the mid-1940s was not as independent as the modern courts have come to be, and it is possible that Act might have passed muster. A few years later, inspired by the fact that they had got away with the Accidental Fires Act, the Government got both Houses to enact their Sinn Féin Funds Act, which purported to stop in mid-action a case which was brought to establish the ownership of funds left over from the old Sinn Féin organisation. That Act was shot down by Mr. Justice Gavan Duffy in the High Court and by a majority in the Supreme Court at least, and possibly unanimously.
I have not asked the Minister this question so far, and perhaps he does not know the answer. Are there in being at the moment actions against the Government, against Ireland, against himself or against any authority based on the lack of legal warrant for the acts of Mr. McLaughlin? The Minister may be in deep water if he supposes that merely to pass this one-section Bill will put an end to those actions. It may do so, but it is perfectly possible that it will not do so. Even if there are no actions in being that he knows of, even if he has not got on his desk statements of claim and summonses from such litigants, for all he knows there may be people even now consulting their legal advisers, or if they think about it tomorrow having read today's debate, they will tomorrow consult their legal advisers and issue proceedings designed to get back to square one with, say, a competition which resulted in a promotion or failure to promote. The Minister may be disappointed in his expectation that this Bill is going to cure them.
I think any Government must have—if only because it consists of human beings, as are all the people who work for it—room in reason and fairness to cure a technical defect retrospectively. But an instance like this is perhaps a bit different. I imagine that in a case like this the courts would look pretty jealously at what the Government here are up to. They might look at it in this light, that by a Bill of this kind the State is trying to give itself a privilege which the ordinary citizen cannot give himself—not just the State in its capacity as the State but in its capacity as a Minister who has made a bungle—I do not care how sincerely he may have acted or how solid the advice may have seemed to be which he received.
Effectively what this Bill seeks to do is to draw a veil over the bungle which the Minister committed. If I commit a bungle I cannot draw a veil over it. There is no machinery to enable me to validate or get an Act of Indulgence or Amnesty or Indemnity or Retrospective Validation which will cure bungles in my life. While I realise, as does the Constitution, that there is a difference of social function between citizens and the State, and that the State does not have to stand in all respects on the same footing as the citizen, here is a situation in which in the perspective of possible litigation the State and the litigant or prospective litigant are not being equally treated because the State is trying to get let off its side of the litigation. It is trying to let off its Minister or its representative, the Attorney General or whoever it is, by the invocation of a procedure, namely, the passage of a Bill, which the other litigant could not do for himself if the situation were reversed.
Naturally, I hope for the sake of all innocent people, from Mr. McLaughlin down, who have been involved in this sorry history, all rooted in the sick greed and ambition of the Fianna Fáil Party who sit in the Government benches, that this Bill will work, and it would be wrong for me to hope otherwise. But I want to give the Minister fair warning that I do not consider that an absolutely open-and-shut certainty.
Finally, I compliment the Minister's advisers and whoever it was who wrote at any rate most of his speech because it is a very clear setting-out of what he sees in the situation. It is not always that we get a series of speeches that are so well put together. I have had occasion to say that on a previous occasion; I think it was one of the constitutional amendments, perhaps it was the Adoption Bill. Obviously, the Minister is being very well served by the people who put words into his mouth.
